Outside Counsel

Today is A. Vincent Buzard's last day as president of the New York State Bar Association. So long, A. Vincent! Once I figured out that your email wasn't some sort of weird spam, I enjoyed reading it.

One of the most exciting projects Dorothea Braemer has initiated at Squeeky Wheel has been Portraits of Main Street, a series of documentaries produced by students under the guidance of professional filmmakers and historians. On June 27, at the Market Arcade Film & Arts Centre the works will be premiered, and I can hardly wait.

Topics include transportation, architecture, race relations, Freddie's Doughnuts, Amy's Place, the Anchor Bar and the Lakeview Brewing Company. Portraits of Main Street is an excellent illustration of what Squeaky does: the filmmakers were given access and training to complete their vision, and are now being provided with an exhibition to show the world the work that they have produced.

You know what's odd? The fact that "Outside Counsel" is one of top places Google sends people who are looking for "The Man Who SHot Snapping Turtles". Apparently there aren't many online resources out there for this classic short story-- and anybody who expects that my site is going to get their homework done for them is likely to be pretty disapointed. Edmund Wilson is just not the sort of writer that the interweb "gets", I reckon. Even his Wikipedia entry is paltry.

It's time for another edition of words that used to mean one thing, and now mean the opposite. In today's episode: "gourmand". A gourmand is a chowhound, a glutton. A gourmand is not an epicure, an aficionado-- that would be a gourmet. The words have opposite meanings, or, at least, they used to. In today's paper I encountered a syndicated article from Knight-Ridder by Jane Snow. Ms. Snow was writing about Caesar Salad, and I thought I'd have a look to see if she made the anchovy error. Many food writers insist that mashed anchovies are an essential part of a classic Caesar, but in fact the classic recipe calls instead for Worcestershire sauce, which has an anchovy base. I'll never know if she got that detail. In the second paragraph Ms. Snow announces: "The Caesar used to be glamorous. From its birth in 1924 in a swanky restaurant in Tijuana, Mexico, through the 1970s, it dripped with class. Maitre d's made it tableside in fancy restaurants from California to Maine. For the home cook, an oversized wooden salad bowl used to be the sign of a gourmand." Wrong, dear, unless the individual in question used the vessel in question as his personal trough.

Happy Birthday, Bob. The State of the Dylan is stong.

I'm ambivalent, somewhat, about Lloyd Bentsen's place in the Politics Hall of Fame. He was always a little to much of a social conservative to suit me, but he brought some ballance to the ticket. "Senator, you're no Jack Kennedy," gets points for being the sort of blunt straight talk we have heard too little of from Democrats-- but it is also a sound bite style quip of the sort that we have been hearing too much of ever since. It is certainly better than anything Joe Lieberman had to say in his debate with Dick Cheney, but the end result was the same.

I like this from his obit: "Bentsen decided not to seek re-election in 1954. Instead, he opted to return to private life in Houston and build his own fortune, using several million dollars in seed money from his family."

Those self-made Texans-- gotta love 'em.

I meant to give my sister-in-law's appearence on the op-ed a shout earlier, but it is even better to see someone else applaud her. Per BuffaloGeek:

"However, I’m hoping that as time wears on, the negative stereotypes of life within the city limits continue to fade away. One person at a time, we’re changing attitudes about the city…most importantly, we need to change the attitudes of those who live closest to it. They are our ambassadors outside of New York State and need to believe that their urban core is a vibrant one.

Columns like this help us do that, thank you Grace."

How nice to discover, via Google, that today is Conan Doyle's birthday.

Joe Klein has written a book that posits that political consultants have corrupted the American political process. Over at Slate Markos Moulitsas and Stuart Stevens are discussing it. Today Stevens says something that I find utterly breathtaking:

"Those of us who passionately support President Bush-- and I know this may come as a shock-- —are drawn to the man for reasons that have nothing to do with consultants or focus-grouped campaign messages. We perceive in him a fundamental set of core values and a humanity that we find powerful and refreshing."

Words fail me. Who could buy this? How could anyone believe that George W. Bush is anything more than an empty vessel? Core values? The man is devoid of any sort of core at all. All anyone should have to do to determine this would be to look at the way his administration has run the country for the last six years. I don't necessarily accept the Kleihypothesisis (he seems to think that this is something new, for examplewhichch is plainlridiculousus), but for someone to even say that they "perceive in [Bush] a fundamental set of core values" establishes pretty conclusively that image manipulation is a core value for the people who are in charge of the country.

What is particularly frustrating is that they are so naked about it. As far as they are concerned saying it makes it so-- and it works! When they are really in a jam they are not above trying a distraction, of course, but mostly they just tell us the sky is pudding, and expect that people will believe that means it is raining chocolate. The latest outrage-- the fact that the NSA is essentially spying on everyone in the country-- is damaging enough that they pulled out the film of the plane crashing into the Pentagonon to shift the terms of the debate. I'd like to think that Americans are too savvy to fall for that, but the last six years have been an education for me. People get the governments they deserve, and we've earned every bit of this one.

If commercial banks were bands, what bank would be The Beatles? Actually, nobody gets to be The Beatles, and who knows one commercial bank from the other? The piece is funny all the same. " 3) Deutsche Bank = Fleetwood Mac. A lazy comparison would equate Deutsche Bank AG, Germany's only global bank, with Kraftwerk, Germany's only global band. Reliant on technology for success, secretive, Teutonic and somewhat emotionless, they have a lot in common.
"A different list of attributes, though, suggests an alternative. Immensely profitable? Check. Years of infighting and not communicating with one another? Check. Badly in need of a style makeover? Check. It's Fleetwood Mac."

The history of the legal pad. I sort of miss the legal size pads, but not enough to bother with the inconvenience. (Via The Morning News,)

What your boarding pass reveals. A ton, as it happens. The National Security Agency's data mining program reminds us once again that there is no such thing as privacy, but in some ways the fact that a piece of scrap paper can contain so much personal data is even more shocking. (Via Rebecca's Pocket.)

Saturday we had an early supper at India Gate (for twenty years A. said she hated Indian food, now it is probably in her top three. Go figure.) That kind of proximity to Mondo Video is irresistible, so after we ate I went in, looking for "Strangers on a Train". They didn't have it, so by default I went over to the "Noir" section. Stuck in there, for some reason (I don't think it is really "noir", but it has noir elements, I suppose) was "Chimes at Midnight", Orson Wells' take on Henry IV Parts I and II. I'd never seen it, and have always wanted to. Like most Wells projects there is a complicated back story-- it is regarded as flawed but brilliant, and there were budget issues, and so on.

I love Mondo-- it is the only thing I will miss when the new hotel goes up. Mike Faust runs his shop like Championship Vinyl, and I never know where my selection will put me on his hipness meter. He was okay with this pick. Who knows where it came from-- it was subtitled in Japanese, and had been dubbed from a laserdisc-- but it was terrific. Wells is easily the best Falstaff I've ever seen, and he completely gets the story-- there are laughs, but the point is the betrayal, and it is played like that throughout. It also has a good look. Falstaff looks bloated and splotchy, just the way a fat old drunkard would; the costumes looked like clothing, instead of like superhero uniforms; and the sets were appropriately medieval in their squalor. It's hard to believe that the film is not generally available-- but it is not. Mondo is the only place I've ever seen it, and that illustrates why independent shops like that are important. Tyler Cowen argues that "Our attachment to independent bookshops is, in part, affectation- —a self-conscious desire to belong a particular community (or to seem to)," and that they do not do as good a job of making culture available as the big chains. I respectfully dissent.

Down the block from Mondo is Talking Leaves. In a lot of ways Talking Leaves is exactly what Cowann is talking about-- it is not a great place to go if you are looking for something in particular. It is, however, pretty good if you are prepared to be guided by serendipity, which I usually am. Indeed, although it is not entirely a guiding principle in my life, enjoying the unexpected is one of the principal reasons I like living in the city. It isn't really that there is so much going on-- it's more that you never know what you might encounter next. It is invigorating to have a place like Mondo around. I've seen "Strangers on a Train" a half a dozen times. We rented it at Blockbuster Saturday, and watched it first. It's still terrific, but compared to the Wells movie it's the suburbs.

Addendum: Now I feel all guilty about knocking the 'burbs. Thanks, Dave. Oh, and it turns out that if you want the Wells movie, you can get it on Amazon. Maybe I should hire a fact-checker.

The funny thing about Doug Flutie, who announced his retirement today, is that nobody in the NFL could ever quite figure out how to use him. He was effective as a member of the Bills, there is no question about it, but the coaching staff was sure that Rob Johnson was the long-term answer. They forced Flutie out, a classic example of "Nobody ever got fired for buying IBM" thinking, and what we got was Homerun Throwback, and a long arid stretch that we are not through yet. I don't think it would be a stretch to say that Flutie was the last legitimate sports star we've had in Buffalo. You might argue Dominik Hasek, and maybe so, but your grandma didn't go out and buy a box of cereal with the Dominator's picture on it. Everyone in town bought at least one box of Flutie Flakes. Is the turkey sub at Wegman's still called Flutie's Favorite?

He had an odd career, and was not above playing clubhouse politics, but he was a hell of an athlete, who came to Buffalo just when we needed someone to strike a spark. If I had a vote, I'd say there is a case to be made for a bust at Canton-- you don't hang on as long as he did, in three different leagues, unless you can play.

Back last winter, when the UB basketball team was looking pretty good there it was, an almost imperceptible buzz, nearly a sort of high-pitched whine, but on a pleasing frequency, like a far-away note on a violin. Of course, when the Bills are riding high you can feel it in the air-- everyone is a little more confident, everyone is a little happier. I am here to tell you, though, that there is nothing like Buffalo when the Sabres are in the playoffs. It really is a hockey town, I think, in a way that New York is a baseball town, and for some of the same reasons.

When playoff time rolls around, the weather here has finally made up its mind, and is almost always fine. We emerge from the long, gray, cold, gray, long winter and recommence communion with our fellow souls. We linger outside, and revel in the re-birth that comes with Spring. Some of us garden a little bit, some of us wring our hands over the state of our lawns, but everyone wants to re-connect, and our hockey team is a good way to do that. It helps this year that the Sabres are something of a surprise-- after playing well for a long part of the long season, they slumped a bit toward the end. This brought on a mild dose of the hangdog in the population-- just a mild enough case to activate the antibodies, but it was there. And then they beat the Flyers, who everybody hates. And now they are dominating the Senators, who everyone was afraid of. Last night's loss actually pleased some of the people I'm hearing. "They coulda won last night," my deli guy said, "But I'm just as glad. The way they're playing, I'm happy to see them play again."

I went to mail an oversize package at the post office down the block, and came upon two postal workers planting some evergreen cuttings. "It's a Sabres tree," one of them said. I have no idea what that is supposed to mean, but it was a glad-hearted moment all the same. "They coulda won last night," I said to the guy, "But I'm just as glad. The way they're playing, I'm happy to see them play again." He agreed.

This summer's Thursday in the Square lineup doesn't really have me jumping up and down. 6/1 Smashmouth (so soon? Man, they wash up faster than ever these days.) 8/3 Violent Fems is a must see. 8/10 Yonder Mountain String Band might be fun. I'm sure I won't be in town 8/31 for the triumphant return of Eric Burdon and the Animals. I have never been to any of the harbor shows, but I don't want to miss Buddy Guy. And that's about all that I'm interested in. CLA fave Carbon Leaf opens for Blues Traveler 6/22 (Carbon Leaf was actually on her wish list for shows this summer).

What with all the flap about Blondie playing Rockin' at the Knox I'd say that this is shaping up to be a pokey summer music season. Maybe it'll be better in the bars.

Effective August 10, 2005, Section 30106 of the Safe, Accountable, Flexible, efficient Transportation Equity Act eliminated vicarious liability of owners of vehicles engaged in renting or leasing motor vehicles for "harm to persons" or property damage "arising out of the use, operation or possession of the vehicle during the period of the rental or lease," provided that there is, "no negligence or criminal wrongdoing on the part of the owner." Before that, in New York (and, I guess, in a couple of other places) GMAC Leasing, or Hertz could be held liable as owners, for torts committed by renters or lessees. I never had a problem with this concept, and, in fact, a nice portion of our practice was devoted to the representation of car rental companies-- one more example of a practice area snatched away from us with the stroke of a pen by an uncaring and capricious government.

New York's Civil Practice Law Article 16 is one of those "Law of Unintended Consequences" statutes that are so popular with tort reformers. In New York joint tortfeasors are jointly and severally liable-- except in situations enumerated in Article 16. That means that if one wrongdoer is 99% at fault, but has no money to respond to the plaintiff in damages, the tortfeasor who is 1% at fault has to pay the plaintiff the entire damages amount. Although this seems unfair to Mr. 1%, the idea is that the innocent injured plaintiff shouldn't be made to suffer because one wrongdoer cannot make him whole.

Article 16 changes this in certain circumstances. Sometimes, if a defendant is 50% or less responsible, that defendant is only responsible for the apportioned amount of the non-economic damages (pain and suffering, mostly). In the example used above, Mr. 1% would only be responsible for 1% as long as the case did not fall into one of the exceptions.

I know, it's confusing, mostly because the statute is written in the negative, but also because the exceptions mostly swallow the rule. There are a bunch of them-- actions against municipalities, and products liability actions and you name it. One of the biggest exceptions happens to be Section 1602(6) which provides that the exception to the rule of joint and several liability shall "not apply to any person held liable by reason of his use, operation, or ownership of a motor vehicle...."

A reason for this exception is that in automobile cases the ability of a defendant to respond in damages -- or carry sufficient insurance, really-- varies greatly. The legislature wanted to make wrongdoers responsible to innocent injured plaintiffs, and it didn't want to create an exception to the rule of joint and several liability in the most common sort of accident litigation-- particularly because insurance is universal. This means that society has assigned this risk to the insurance industry, which specializes in finding ways to spread risk around economically.

Interestingly, (to me, anyway) the new federal rule seems to create a hole in Article 16. Liability that is fault-based-- for example, negligent maintenance, or negligent entrustment-- is not the same as vicarious liability for mere ownership, and is arguably not "use or operation" either. As I read it, a lessor or rental company found liable in tort is now not covered by the 1602 exception, and is now no longer jointly or severally liable. It is hard to say if this is a good thing or a bad thing, but it is certainly different from the original purpose of the statute.

Thinking about stuff like that is how I spend my days, and what I trained for years to do. Gosh, I love my job.

Something about LCA's blog, Dance, Dance, Revolution, reminds me of the little owl who "loves to sing-a, about the moon-a and the June-a and the Spring-a," but I can't quite put my finger on what it is. Could it be the "About Me" section?

As I've said before, my problem with DVDs of television programs is a salt peanuts problem-- I can't watch one and walk away. Netflix brought the Dick Cavett "Rock Icons" disk featuring Janis Joplin. She was 27 when she died, shortly after her last appearance on the show, older than I would have guessed from looking at her. She is in top form here, and top form for Janis Joplin really does mean better than anyone before or since. ("Is she not wearing a bra?" asked LCA.)

A mild revelation is Cavett, who is funny, and an excellent interviewer. Joplin teases him, but the affection between them seems genuine. The 60's didn't do anybody any favors fashion-wise: among the other guests only Chet Huntley looks like a Serious Grown-Up. Raquel Welch is at the peak of being Raquel Welch, a fine thing indeed. Douglas Fairbanks, Jr seems to think that it's his talk show, but that's fine-- one of the things that is appealing about these programs is that there is a loose feel of genuine conversation going on. Margot Kidder, barefoot, a hippie chick just off her second movie was amusing, but what made me saddest of all was the realization that this mainstream talk show was probably the last time when people could use words like "paradigm" and not be on PBS. Sweetly, Joplin chimes right in throughout the discussions on violence in American culture, or bias in the media, and has intelligent things to say. Cavett's monologues would only seem funny to someone who remembers John Lindsay's New York. ("Subway crime is down: all of the muggers are taking taxis>"), but his delivery is sincere and ingratiating.

I suppose the vices we pursue are the vices we love best, but it is still fun, every now and then, to chip a little with a different vice. Still, I'm glad that my vices are more glamorous than gambling. Do you think that any of the people who want to see a casino in Buffalo have ever been in an OTB? My word, what a sorry assemblage of humanity congregates there! You'd figure that Derby Day is like the day after Thanksgiving at Fortunoff's in OTB land-- all the regulars are there, and all the amateurs as well. That's not how it looks, though. It looks like a cross between an unemployment office and the smokers lounge at a VA hospital. There is nothing even remotely glamorous about the OTB. Even a couple of guys in battered straw hats would spruce the place up. I don't know that I have ever been in a bar as divey as even a reasonably nice OTB-- I don't think a bar could be that divey, or an opium den, either. OTB is a step above crackhouse on the glamour scale-- barely.

Interestingly, it was not a stag crowd. The clerks are frequently women, of course, and a less maternal group you will never see, although I suppose it is possible that they are somebody's mothers. There was also a sprinkling of what I took to be wives or girlfriends, a talkative lot, who didn't seem to be talking about the ponys. The serious OTB patrons don't talk much at all, or when they talk they talk exclusively about who they like in the next race--and maybe sometimes why. Mostly they just sit at the tables and scribble bets, or stand on line to place bets, or stand under the television sets watching the horses they have bet on. They mostly watch silently-- there is very little joy in their spectating, from what I can tell. When a race is over, they turn away, and start studying for the next one.

Of course, I must have looked peculiar to the denizens of the Delaware Avenue OTB, togged out in tights, windbreaker and helmet. Bicycles are not unknown to this crowd, but usually a bike is a mode of transportation resorted to because a judge took your car keys. These guys didn't think I looked like Lance Armstrong: they may have thought I was Spiderman. "I see you're wearing your helmet," the punter who was sitting at the table I sat down at said in his rheummy voice. "Well, sure," I said. "You gotta protect your head." He nodded in agreement, then returned to his scratch sheet.

As I surveyed the field I became increasingly convinced that Andy's read is correct. Barbaro looks like the class of the field. WJA had called yesterday with instructions to play him across the board, no doubt getting the little tingle that comes from using an electronic device to place a wager over state lines. I put Barbaro in my boxed exacta with Point Determined and Bob And John filling out my ticket, then went with him one more time, on the nose. Captain X touted me away from Sinister Minister-- I may be back for him if he goes to Baltimore, but in this field I think he'll flame out down the stretch.

UPDATE: Barbaro paid $13.40 $7.60 $5.70. Thanks Andy!

UPDATE II: Adam Hofstetter nails the OTB experience in this Sports Illustrated piece. "Whoever said horse racing is the sport of kings has obviously never been to an OTB. Not a lot of royalty hanging out at the OTB on a regular basis. Unless, of course, one of those old drunk guys happens to be the Duke of Windsor. "I say, my good man, would you kindly fetch me my walking stick? I must make haste back to the manor before afternoon tea, as the Duchess will be most displeased with my losses this fine day." I hear that the good Duke prefers the George Washington Bridge Bus Terminal location."

I just spent three hours this evening interviewing a lawyer for a piece I'm doing for Spree. I'd figured about a half an hour would do it, but he was glad to talk, and I was glad to listen. I must have started to leave three or four times, but then I would ask something, or he'd recall something, and we'd be off again.

I wish I could give the case we were talking about the full John McPhee treatment: it was an epic set of trials and appeals, and I'm really only going to be able to give the readers of the ultimate piece a taste. The personalities were huge, the issues were complex, and the stakes were high. What I came away with this evening was twofold: I was grateful to the lawyer I was interviewing for his taking the time to talk to me, first of all. More than that though, I was impressed with his deep affection for his late partner, the man who tried the case that he second chaired. Lots of people practice law with people that they don't like; this man was blessed, much as I am and have been, by being able to practice with someone he liked and respected.

I love my writing gig with Spree, but I don't do as much shoe-leather reporting as I ought. Today I did, and my reward was to get a good feeling about our glamour profession. A colleague shared some of his time with me about a case that was a formative experience in his life, and the take-away he had from what must have been a gruelling experience was "The system works". Beyond that, I got a little insight into a fond relationship. It won't work into my piece, I don't think, but it was good to be reminded that we don't always wear our game faces-- and neither do our adversaries.

Until Bruce Eaton mentioned it during a concert pre-talk I had not know that Jazz Times has a free music download feature. It is a nice way to sample things that I might not otherwise take a flyer on. The newest artist featured is Ingrid Jensen, who was first trumpet at the Maria Schneider Jazz Orchestra show- I'd have bought a side from her if she had brought any to sell, and I expect I'll be buying a side soon enough.

Dennis Duggan has died, which I guess we all knew he would some day. His obit says that he "is believed to have been the last former Tribune reporter still working at a New York City paper," but that can't be correct-- didn't Jimmy Breslin write for the Trib?

People in Buffalo-- particularly old reporters-- are fond of reminicing about the Courier-Express, which folded in 1982. I went to law school with some people from the Courier, and know a few more from around, and they seem to have a different patina than the newspaper people that were always with the Buffalo News. Perhaps being associated with a defunct paper lends that sort of aura. Certainly Duggan posessed it; reading his column was one of the reasons the first thing I do when I get off the plane is to pick up a copy of Newsday.

More on Buffalo Seminary's Malcolm Watson. I continue to think that the whole thing is impossibly sad. CLA says that she believes the 15 year old girl is at least somewhat culpable, but I really can't bring myself to see it that way. Fifteen is old enough to know better, but the plain fact is that if we were all called to judgment for the things we did when we were 15 we would all be the sorrier for it. We get a little bit of a free ride when we are young and stupid, if not from our peers than at least from adult society. Inclined as I am towards forgiveness, I wouldn't have it any other way. Inclined as I am towards the judicial process, I think the fact that the story slips in that when he was arrested the cops found an unopened condom and an empty condom wrapper inside his coat on the passenger seat of his car is something of a cheap shot. That's a little more information than had emerged in the press to this point. I don't see how it helps anything or anybody, and it has the quality of something leaked by the prosecution.

Mad props to CLA and the City Honors Rugby Club-- New York State Champions! Update: Western Division New York State Champs. They are still going to Nationals.