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William C. Altreuter
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Saturday, July 29, 2006

Dahlia Lithwick on the suit brought by Robert Steinbuch against Jessica Cutler for blogging about their affair. Steinbuch was counsel to Sen. Mike DeWine when he started sleeping with staff assistant Cutler in May 2004. She wrote about the fling detailing on her weblog, Washingtonienne and now he has brought suit alleging the novel tort of "public disclosure of private facts."

Lithwick: "To prevail at trial, Steinbuch must prove Cutler's disclosure was "public" and the facts "private." He must show that the publication was "highly offensive" with no "legitimate concern to the public." The specific legal questions will include whether it matters that Cutler's blog was intended to be private—in a later motion Cutler describes what she did as little more than "writing on a bathroom wall." She claims someone else allegedly passed her Web site along to Wonkette, who was recently joined to the suit. There is also the matter of whether Steinbuch's claim is waived by his earlier water-cooler admissions to his colleagues that yes, he was sleeping with the staff assistant.

"But layered over all this legal wrangling, a vital question remains: Is this lurid Internet dishing important free speech, or a cruel invasion of privacy? Is there something about the Internet, or this speaker, or this subject that raises the legal stakes? Most of us can probably agree that Cutler's revelations were both private and "offensive." But how on earth can we know when a revelation is "of no legitimate concern to the public"?"

I dunno the answer to Lithwick's question-- but I think it's a pretty squishy thing for courts to get involved in. I'm a First Amendment absolutist mostly, but that's not the same as saying I think the Big Gun should be brought into every battle. This speech was not defamitory, because it was true. It did not concern anything private, because Steinbuch waived whatever privacy expectation he might have had. I don't see that we really need to get into the question of whether the content was of "legitimate interest to the public" or not, and if I were the court I'd stay away from that question.

Hilariously, Steinbuch is making this a permanent part of the public record by bringing the action. Is he doing it to clean his reputation? Or is he doing it because Cutler has cashed in, and has assets that he thinks he can recover? I don't see this case surviving motion practice, but it would be fun to see the damages proof.

Friday, July 28, 2006

This is an interesting development, and one that has been a long time coming: the Chief Administrative Judge has adopted a new Part 221 of the Uniform Rules for the Trial Courts which lays out bright line rules for the conduct of depositions. The new rules bar objections (except for objections to form; objections on the grounds that the person taking the deposition is disqualified from so doing; and objections to the competency of a witness-- you know, the CPLR Rule 3115 objections). So called "speaking objections" are barred: "Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning."

Attorneys are forbidden from directing their witness not to answer a question, "except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person." Of course, you could drive a truck though that last exception, but it is still a big change.

Finally, "An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in section 221.2 of these rules and, in such event, the reason for the communication shall be stated for the record succinctly and clearly."

It would be pretty to think that this rule change will curb a lot of the abuses we've all seen over the years, but the reality is that even when the strike zone is codified, a strike is what the umpire calls. Still, it is helpful to have something to point to on these sorts of things-- if this new rule cuts down on the necessity of getting rulings in the middle of a depo even a little, it is a very good thing.

An aside: in New York we used to call depositions "EBTs"-- short for Examination Before Trial". "Deposition" was the federal court word, and in some milieux using it would brand you as an effete snob. (Conversely, saying "EBT" in a federal court marked you as a state court guy, someone less familiar with the subtleties of the FRCP, and a person likely to use his tie as a napkin.) This charming little distinction has been eroding for years, and these days calling a deposition an EBT is like calling a Preliminary Conference an "8-A". You don't know what an 8-A is? Man, I feel old.

Thursday, July 27, 2006

There was a moment, a few years back, when the lawyer-written blog was The Next Big Thing. Outside Counsel was a little bit ahead of the wave, and has always been more about being a lawyer than about the law per se, but we got caught up in it, and it was kind of exciting. There were a couple of sites that were at the white hot center of it all, it seemed to me then: Ernest Svenson's Ernie the Attorney and Denise Howell's Bag and Baggage. Ms. Howell actually coined the terms "blawg" and "blawger". One of the interesting things about the natural history of weblogs is that in the early stages of a new blog ecosphere's formation a few sites lead the way in creating comprehensive lists of other people who are mining the same vein, and Ernie and Denise both did this. (I'd say Camworld was the site that had the most comprehensive blogroll back when this whole thing was new, or maybe Rebecca's Pocket.) I stopped following the growth and fragmentation of the law blog phenomenon a while back, so I couldn't tell you what the hot sites are these days. Ernie went through a rough patch, and lives in New Orleans, so he wasn't writing very often, and Denise had a baby, and was mostly writing about intellectual Property issues that didn't really touch on what I do day to day, so I stopped following both of their sites as closely as I once did, maybe checking in monthly.

So I was quite surprised when I turned to Bag and Baggage today and read that Denise had been let go by her firm about a week ago, apparently for reasons relating to her producivity working part-time. No doubt there is more to the story, since there always is, but you'd think that a big shop like Reed Smith would find a way to be more accommodating to the needs of such an obviously cutting edge lawyer. Of course, law firms are pretty bad at taking the long view, but even so, this impresses me as a foolish decision. Firms should do backflips to try to keep people like Denise, but they rarely do.

Part of the traditional garb worn by English barristers is a money bag that hangs at their back. The legend is that it is worn at the back so that the barrister's argument is not influenced by knowing the amount of his fee. I think that's one of the reasons I love our glamour profession: it has things like that in its professional DNA. It means that our independence is what makes us valuable-- perhaps uniquely among the professions. My law partner and I wandered off the big firm plantation 13 years ago, and never looked back. I wish Denise the best of luck in her new endeavors.

Good article on summer drinks. When the weather is sticky like this beer doesn't get it done, and although a glass of white wine is a fine thing, it isn't properly refreshing. We've been experimenting with Prosecco, and this is work that has merit, but I think I am going to pick up a bottle of Campari this evening.

And, of course, I still have plenty of coconut-flavored rum.

Wednesday, July 26, 2006

Just the other day I was thinking about how much I miss "Mystery Science Theater", and now I find that Michael J. Nelson, head writer and star of the show has gone into business selling downloadable commentaries to dvds. Not much of a selection at this point, to say the least, but it is a notion with potential. (Via Rebecca's Pocket.)

I really ought to get out of the Letters to the Editor habit. I have an excuse with this one-- I wrote it as a fan letter to my homeboy, Rosenbaum, who then wrote back and asked if they could run it on the Letters page.

Via Lance Manion, MyHeritage.com has a feature which allows you to upload a photograph then tells you what celebrity the person resembles. It tells me Matt LeBlanc (a different photo got me Johnny Depp-- but also Kris Kristofferson and Bill Gates). A merry little time waster that I recomend.

Tuesday, July 25, 2006

The present vacancy in the New York Court of Appeals has every lawyer in Buffalo buzzing. I have become privy to some background information about one of the candidates, and, Bertie Wooster-like, feel that I must share it.

Ahem. I have been reliably informed that one of the candidates on the list before Governor Pataki at one time dated someone who kept a pet skunk. That's all I'm saying, except that it wasn't either of the two upstate candidates, and it especially wasn't Presiding Justice Pigott.

Tinkerty tonk.

Saturday, July 22, 2006

The list of candidates for the Court of Appeals seat presently occupied by George Bundy Smith includes Judge Smith himself, who could only occupy it for another year before mandatory retirement; the Hon Eugene F. Pigott, Jr., Presiding Justice of the Appellate Division, Fourth Department; A. Gail Prudenti, the presiding justice of the Appellate Division's Second Department (said to be a great pal of Al D'Amato); Justice Thomas Mercure from the Third Department in Albany; the Hon. James Catterson and the Hon. Richard Andrias, from the First Department; and Justice Steven Fisher from the Second Department.

Everyone on the list except Smith is a Republican. Political realities really mean that Judge Smith will be entering private practice shortly, and after that it is hard to say how it shakes out. Buncha white guys, and a woman. Only two upstate candidates-- and right now Western New York is not represented on the Court.

Our preference here at Outside Counsel has never been any sort of secret, but I feel I have to point out that any process that can produce this sort of quality is working pretty well. It is peculiar, in a way, that the only Democrat is the incumbent, but I have a hunch that there were probably not a lot of Democrats who threw their names into the hat. It would be interesting to know. I suspect that Elliott Spitzer will be more in the Mario Cuomo tradition of judicial appointments, and at least receptive to qualified Republicans, but for most of the people on this list this opening is probably their best shot for a while.

Friday, July 21, 2006

10 tell-tale signs that you love food a little too much. I'm only guilty of one-- I can't bear to let the rendered fat from a roasted duck go to waste, and have a jar of it in my refrigerator as we speak. (Via Megnut.)

Every now and then we think about expanding out and writing for some different magazines. Not these, though.

ALL YOUR SNAKES ARE BELONG TO US!

Thursday, July 20, 2006

I realize that it would be a good thing if there were a Democratic majority in the Senate, but it would only be good if that meant that the Democratic majority was some sort of check on the imperial Presidency we are up against. There is some question in my mind about the sufficiency of the Senate Democrats collective spine on this point-- they've shown backbone like a banana up to this point. There is no question about Lieberman, though. He has been complicit with the Bush Administration right along, he was the worst VP candidate I ever saw and he was no friend to the Clinton Administration. If the people of Connecticut vote him out, I say good on them. (Via Lawyers, Guns and Money.)

Baseball player or Wodehouse charactor? Bonus: Wodehouse was a Mets fan. (Via Bookslut.)

Wednesday, July 19, 2006

50 Albums That Changed Music. Unlike most lists of this ilk this does not assume that the world began sometime around 1964. It is, on the other hand, English. I own 18-- I keep meaning to pick up a copy of "Sweetheart of the Rodeo", I guess I should own the Robert Johnson side. I have no excuse for not owning "My Generation"-- I just don't, is all. I have no need, nor have I ever had, for "Dark Side of the Moon".

We are in the process of outfitting CLA for her wilderness excursion, and last night found ourselves in an outdoors superstore called Gander Mountain. Some time ago I came to the realization that if I'm using the words 'camp' and 'fun' together I must be talking about the good, Susan Sontag kind of camp, not the bad, insects and no showers kind. This has worked out pretty well for me: more standing on lawns drinking wine, less scratching and smelling like woodsmoke. That's not to say that I'd be altogether adverse to a little backpacking, I suppose, or a canoe trip, maybe, but I'm just never, ever going to be in the market for a cast iron campfire ring decorated with moose cutouts. Or a recliner upholstered in camo.

Saturday, July 15, 2006

There is something funny about the resignation of Paul Tokasz from the State Assembly, and not just because his stated reason is "To spend more time with my family." The guy is only 60 years old, and he is the Majority Leader-- he could have been flexing his clout for quite a while yet. That is, however, a topic for discussion another time. What really interests me about this shift in the firmament are the people that are being mentioned as candidates to take over Tokasz' leadership role.

I went to college with one of them, Joe Morelle. "Senator Joe" we called him, after he started an exam answer in our Intro to American Politics class, "Senator Morelle introduced a bill...." Joe left school before graduating to get a jump on his political career, and it seems to have worked out pretty well for him. It is startling, however, to realize that a guy I used to hoist Gennys with at The Idle Hour is now potentially one of the most powerful politicians in the state.

Friday, July 14, 2006

I spent way more time with this than I should have. In the great tradition of "Am I Hot Or Not", Chose A Nude.

Thursday, July 13, 2006

An article about wheat beers in yesterday's paper put me in the mood, and I happened to be out by Premier, so I picked up some weisswurst and a six of some sort of Belgian white beer. When I got home I simmered the sausage in beer (someone brought a 12 pack of Labatts in cans to the house-- perfect for this application) and fired up the grill. A was at a meeting, and CLA wanted no part-- she was in the midst of a craving that made me want to cry. While she prepared a dinner of fishsticks, frozen peas and mashed potatoes, I grilled my wurst, then ate it with a side of cole slaw. As I munched away, I realized that the last time I'd had something like this was at an Autobahn reststop. I had just prepared a German fast food supper, the Euro equivalent of the appalling meal CLA was having.

It wasn't bad, though.

Wednesday, July 12, 2006

Neal Katyal, who argued the winning side in Hamdan v. Rumsfeld says that the suspected terrorists held at Guantanamo Bay and elsewhere should be tried pursuant to the Uniform Code of Military Justice. His arguments make sense, but I am embarrassed to admit that I know exactly nothing about the UCMJ. Even the idea of my law school offering a class in Military Law would have been laughable back then, and the notion of my taking such a class utterly absurd. We'd have called it "Kangaroo Law" or something, and have been disdainful. Indian Law seemed like a waste of time back then, and now it's a booming field. I thought International Law was ridiculous-- "Where do you argue International Law cases?" I remember quipping, "At the International Moot Court in The Hague?" I was, of course, wrong. I argue principles of international law all the time in our practice-- but I had to teach my self.

You know what I wish my law school had offered? Roman Law. It's the basis for most Western law, and a good way to get a handle on almost any Western legal concept even today. Besides, it would have been just plain interesting. We spend way, way too much time in law school approaching our Glamour Profession like a trade, and it diminishes us. To its credit, UB has always resisted this, but you won't find Roman Law there today, and I'm not so sure that there is even a comparative law course offered.

Of course, resources are limited at any law school, and there is passing the bar exam, which means that there are a number of core subjects that must be studied. An expert in Roman Law on the faculty might mean that there wouldn't be room for an IP person, or someone versed in UCC Article 3. When I was in law school Andy Spanogle wanted to teach International Business Transactions, but was pressed into teaching the UCC stuff because there wasn't anyone else to do it. I enjoyed Secured Transactions with him so much that I ended up taking several more classes from him-- but I never even knew he was interested in private international law until I met him again years later at a conference at George Washington University. He'd moved to GW because they let him teach what he was interested in-- and UB lost a terrific faculty member because they wouldn't, or couldn't, fit what he wanted to do into what it needed to do.

I've said more than once before that a lot of people become lawyers because it is the terminal liberal arts degree. A lot of people become lawyers because it seems like a good way to make a big pile of money. A lot of people in both of these catigories end up miserable, because neither of these reasons are good reasons to do this work-- and the work is too hard to enjoy unless you love doing it for its own sake. In general the American model for legal education impresses me as one that produces superior lawyers, but we really ought to let a little more intellectual curiosity into the process. We are not like B-School. We are a learned profession.

Tuesday, July 11, 2006

Of course, I've been saying it for years, but it is better to have data than an opinion. The cause of medical malpractice litigation is medical malpractice-- and the notion that there is a medical malpractice crisis is a myth. Ezra Klein quotes Tom Baker's "The Medical Malpractice Myth": the malpractice crisis is "urban legend mixed with the occasional true story, supported by selective references to academic studies," and notes that, "including legal fees, insurance costs, and payouts, the cost of the suits comes to less than one-half of 1 percent of health-care spending. If anything, there are fewer lawsuits than would be expected, and far more injuries than we usually imagine."

This is entirely consistent with my own anecdotal observations. I know that harping on this makes me sound as though I am hostile to the Men in White. I'm not-- but I have an abiding faith in the legal system's ability to produce appropriate resolutions to disputes that parties cannot resolve themselves, and I am a firm believer that one of the ways that this is accomplished is by treating like things alike. If the goal of the tort system is to make victims of negligence whole by compensating the victim monitarily , than is should be irrelevant if the tortfeasor is a drunk driver or a careless anesthesiologist. If the injury is the same, the damages should be the same, and any argument that denies this amounts to a plea for special treatment.

There may be an argument for treating doctors differently-- but I've not heard it made persuasively, with actual data. Since they are scientists, you just know that the fact that they aren't making that argument means that the argument is a dog.

To apheresis yesterday, a tedious event. I'd told myself I was taking a holiday during the running season, but they called and told me that the rains and flooding had created a serious shortage, and faced with that sort of plea naturally I had to go. I realize that it is unseemly to complain about what is, essentially, a charitable act, but the fact is that the Red Cross seems to be about as badly run an institution as I've ever seen. It takes me less than an hour to donate platelets-- once I'm on the machine. It takes something like an hour and a half for them to get to me, ask me if I've been to Africa or paid for sex since they last saw me, two months ago, take my b/p and temperature and get me on the table. It would be interesting to see the statistics on blood donation in general, and on platelet donation more specifically. Who does this? It mostly looks like old people, and I'd be willing to bet that most of the men were in the service, and most of the women were or are nurses. You hear about shortages, but the people I see all seem like pretty dutiful regulars. Are there really peaks and troughs based on weather? What other variables are there? Do the phone calls really work in a cost effective way? Is anything about the process cost effective? I guess that last might be the wrong question: since there is nothing that competes with the Red Cross, and since blood can't be substituted, whatever they do to get it is what they do, and it costs what it costs-- but wouldn't you think there'd be a more efficient way to do it? How much waste is there? Since the product is donated, the overhead is essentially in collection and distribution, right? How does that break down?

None of this occupied my mind yesterday. I spent the 55 minutes on the table watching "Fear and Loathing in Las Vegas". I never get to see the whole movie. (They always ask if I'd like to stay to see the end-- wouldn't it be better to get another person on the table? Apparently not.) Later that night we went to the "Pirates of the Caribbean-- Dead Man's Chest". I'm getting it now about Johnny Depp-- he really is that good, I think. He completely occupies every character he plays, to the extent that you actually buy into the notion that you are watching Dr. Hunter S. Thompson or Captain Jack Sparrow. The Pirates movie is a mess, but he's terrific-- every moment he's on the screen is great to watch. "Fear and Loathing" is also a disaster. It requires a voice-over narration for its duration for coherence, but if I hadn't known it was Depp, I'd have been surprised if you told me it wasn't Thompson. It would be an interesting movie to watch with the sound off, just to see how Depp manages to create the persona by sheer physicality.

Friday, July 07, 2006

I've only read three of the books on this list of The Ten Greatest Books About Rock And Roll. The others look good. (Via Bookslut.)


Here's a nifty thing: the soundtrack to the 1976 New York Shakespeare Festival's production of "The Threepenny Opera", featuring Ellen Greene Jenny and Raul Julia as Macheath. Worth it to me, if only because it takes me back to the late 70's in NYC. I don't know if any city will ever seem as exciting to me again.

Thursday, July 06, 2006

I see by my alumni magazine that Professor William J. Edgar has retired. I'm sure he'd be surprised to hear it, but I can't think of a faculty member at Geneseo who was more influential in my life. He was a Philosophy professor, and I probably had somewhere around a dozen credits with him. Walking out, my mind was usually reeling, and I find myself mulling over some of the ideas he introduced me to even today. My time with him is the reason I sort of understand what EGA is studying-- and why she loves it so. I hope he enjoys his retirement as much as I enjoyed his teaching-- he'll spend his sunset years quite happily if he does.

I love this sort of thing. In 1973 C. Etzel Pearcy, geography professor at California State University, Los Angeles drew this map to illustrate his proposal that the political boundaries of the states be re-drawn to be more economically efficient. Here in Buffalo we'd be in Mohawk, along with Rochester, Syracuse, Utica and Southern Tier cities like Ithaca, Binghampton, Elmira and (maybe) Scranton. Looks like Albany would be part of Hudson. It makes a certain kind of sense, as the article lays it out (although I agree that I'm not crazy about some of the names).

It is interesting to think about what it would take to do this. I'm not so sure there would be any political mechanism sort of outright dissolution and reformation that could accomplish this plan. It is also interesting to think about which states would be red, and which would be blue. Professor Pearcy's inclination is to have urban areas as the center of each new state: the effect of this is, I think, to make each of the states more urban than they are at present. Bighorn, Bitterroot, Bonnieville, Cochise-- these all still look pretty red to me. Would this eliminate the need for a bicameral legislature, since it is population balanced? Probably not, is my guess. (Via Flutterby!)

Wednesday, July 05, 2006

French steak methodology.

Tuesday, July 04, 2006

EGA notes: "I have this belief, left over from childhood, that if you tell your problems to grownups they will be able to fix them. They never actually can, but I am undeterred." I mention it because I have this belief that I can help my daughters with my advice. I never actually can, but I am also undeterred.

A Charley Brown "Hey Ya"

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