Outside Counsel

I was giving my final last night, but received an update on the mouse situation from A.. "Lancaster was carrying it in her mouth in the kitchen, but then she put it down and it ran away. Later, CLA said that Anouk was carrying it in the dining room, but she let it go, too."

My efforts at cross-examination were not successful. When I asked A why the cats were doing this she objected on the grounds that the question called for the operation of another's mind. The cats merely blinked inscrutably when I interrogated them. Nevertheless, being the glass half full kind of guy I am, I am inclined to view this as a positive development. Perhaps the cats have adopted the mouse as a pet. If this is true, it would seem to confirm my single mouse theory. Of course, it could be that the cats have somehow reached the erroneous notion that their role in our household ecosystem is in the field of Vermin Transportation, rather than in Rodent Removal. Repeated viewing of My Neighbor Totoro could have created this mistaken impression, I suppose. That would be a less salubrious development, suggesting as it does a mouse population that requires a mass transit infrastructure.

Like everyone else, I suppose, I long ago yielded to the inevitable, and now do the overwhelming majority of my legal research on-line. I hate it, though, because my mind does not work the way Westlaw thinks it should. For example, just now I was reading a statute. I'd like to keep that statute in front of me and look at some cases. In order to look a decisions, however, I have to back out of the statutes database, open the cases database, and conduct my search. There is no simple way to flip back and forth. I could, I suppose, block and copy the statutory section into my word processor, but since I'm drafting as I go along, or at least making notes, that means that I'm flipping between my browser and two or three separate word processing documents. Maybe it's still faster, but whenever I'm involved in something like this I feel like John Henry and his hammer. I'm sure that I could do it better with the books.

There is probably a simple solution to this. Maybe it already exists in Westlaw-- some sort of way to use tabs, for example. If does exist, the fact that I haven't found it means the problem still exists, and while I'm hating on West, when are they going to make it compatible with Firefox?

EGA told us that during her time in the Middle Kingdom people were surprised at the size of our family ("You have two sisters?") and by the number of our pets ("You have two cats? And you feed them?). Proud of her sisters, but embarrassed by the extravagance of two cats she would explain that the cats kept the mice away, thus creating in the minds of her audience the impression that the Altreuter estate is vermin infested. In fact, for the most part the cats do seem to keep the mice away, but an occasional mouse, a breed not generally noted for good judgment, does sometimes venture in. Last night was such an occasion: a 3:00 AM CLA came into our bedroom, rousting me from a sound sleep, and wailed, "Will someone please kill the mouse so it doesn't bite Lang?"

I was elected. I went downstairs and sure enough Lancaster was busily poking at the corner formed by the wall under the bathroom sink and the literbox. Pulling the box away revealed a small grey mouse-- a wee, timorous beastie who had no doubt wandered in looking for a Robert Burns birthday party. It was not accessible, but the cat seemed to be on the case, so I closed the door, on the theory that this would allow her to administer the coup de gras in private. I returned to bed, only to be awoken an hour later by A. "You have to go and throw out the mouse so I can use that bathroom in the morning," she told me. I shuffled downstairs and opened the bathroom door. The cat came out. I closed the door behind me, and surveyed the scene. There was no corpus delicti visible, and I concluded from this that the mouse had found safe harbor in some inaccessible corner of the room. I started moving things, and quickly located it behind a cabinet. Operating on the theory that cats really are the best at this sort of thing, I exited, closing the door behind me, and located the orange cat, who was asleep on a couch upstairs. "Lang isn't a closer, so it's up to you, Orange," I said, depositing the marmalade-colored animal in the bathroom. Apparently the orange cat is not a closer either, because there was no mouse body in the bathroom this morning. "Why do we get mice?" A moaned. "Mouse," I replied, my voice made gruff by lack of sleep, "And it is gone now."

I doubt that anybody watches it these days, and it is probably mostly remembered as a TV series, but back in the day "The Paper Chase" was a movie that defined what our law school expectations were. It dates, I think, although that's pretty much how we dressed, and it mostly gets the haircuts right. By the time I got to law school the anxiety level was still like that, but the pedagogy wasn't. Still, in our anxiety we thought we were living in Professor Kingfield's class, and that's all that mattered to us.

Watching it now, I found myself mostly rooting for the curmudgeonly Kingsfield, instead of Timothy Bottoms' Mr. Hart. Hart is secretly dating Kingsfield's daughter, Lindsay Wagner, (before she became a cyborg), and a source of conflict in the relationship is that both of them are unsure if Hart's feelings towards her are genuine, or part of his obsessive efforts to get into the mind of his professor. As I watched, it seemed to me that I could identify types that I went to school with, but that no-one who takes my class would fit into any of those roles. And one other insight: the Kingsfield character is brilliant and intimidating, but as I watched it occurred to me that it is not particularly difficult to intimidate a class full of law students. A little experience teaches us a couple of moves, and that's all it takes to stay two or three questions ahead.

I wonder if the shift away from the sort of Socratic method the movie shows turns out better lawyers. We are still Socratic (although I haven't been, particularly, this term), but at least at my school we are much gentler. I would hope that this makes us better at counseling our clients by making us less Olympian in our outlook. Maybe it does. Our glamor profession attracts people for a number of reasons, of course. There are, of course, the people who are here because law school is the terminal liberal arts degree; and of course there are the people who go to law school because they think law is a good way to make a lot of money. A lot of the people I went to school with in the latter category actually have made some pretty impressive coin, so I shouldn't disparage that, even if, to quote another movie, "it's no trick to make a lot of money... if what you want to do is make a lot of money." That's not quite true, after all. If you are going to make a lot of money practicing law, you are going to work very hard at it. (Last night on Theme Time Radio Dylan quoted Jean Cocteau: "We must believe in luck. For how else can we explain the success of those we don't like?" I must be in a generous mood.) Oddly missing from the Harvard students in Mr. Hart's milieu, which was, after all, in that late 60's early 70's time when even William Rehnquist had long hair and sideburns, were any aspiring activist lawyers. (Maybe the woman in the front row of Kingsfield's Contracts class-- the one with the red hair and the southern accent-- but I doubt it.) We went to school with quite a few of those, and for the most part they seem to be happy with the choices that they've made.

My class this year is smaller than usual, but the students impress me as well-intentioned and prepared to work. Both of these are good qualities in lawyers, and I expect that when they are turned loose on the world they will do well by their clients. They mostly seem to enjoy what they are doing, and that is the most important thing-- lawyers who don't like the law are legion, and it makes me sad when I see them.

When is Big Duck Day this year?

Guitar World polled its readers to come up with the 100 Greatest Guitar Solos. City Rag found videos of the top 20. There's a lot on the list that I don't know, and more Zappa, probably, than there should be, but even so this sort of thing is hard to beat. (Via Boing Boing.)

Overheard, guy on cellphone: "The last time, literally, we talked about it and a month later she was pregnant."

Although I have my personal pantheon-- and even a sort of informal ranking system-- the idea of a rock'n'roll Hall of Fame doesn't really sit well with me. Noel Murray and Keith Phipps break down some prospective candidates, and illustrate some of my problem. I mean, you've got your undeniably great, your Chuck Berrys and Bob Dylans. The equivalent of the first class of baseball's HOF (Ty Cobb, Walter Johnson, Christy Mathewson, Honus Wagner and Babe Ruth) is actually pretty canonical: Chuck Berry, James Brown, Ray Charles, Sam Cooke, Fats Domino, The Everly Brothers, Buddy Holly, Jerry Lee Lewis, Elvis Presley, Little Richard. That's pretty good, it acknowledges the music's roots in African-American culture, and it looks like something that could be built on by carefully selecting only the greatest contributors to the form. The problem is that you're always going to have your Rabbit Maranvilles. I mean, The Cure?

One of the things that makes the Netflix experience work so well for me is that it is an easy way to get to movies that I otherwise might not remember. At a brick and mortar store I am confounded by the array of stuff I don't want to see, and I can never remember what things I've read about that sounded interesting. With Netflix if I read somewhere that someone thought the world of "Grosse Pointe Blank" I can add it to the queue and in due time it shows up. This works a lot better for me than simply downloading something would. Unfortunately I can't recall where I heard about "Grosse Pointe Blank", because if I could I would go back to see what else whoever it was recommends. Solid cast, funny, some explosions, but not too many, great soundtrack-- Joe Strummer did the incidental music-- what's not to like?

When I was younger I loved the radio for its ability to introduce me to interesting, exciting new music. Now I love it because it reminds me of music that I'd forgotten about. Not infrequently it's the same music: this morning on "Deep Tracks" it was BeBop Deluxe doing "Sleep That Burns", flamenco-styled guitar riffs over soaring synth. Great stuff. The vocals are, in the manner of Brit prog-rock from that time, a bit twee, but that's okay. To Blue Öyster Cult last Friday at Club Paradise in Blasedell, a similar sort of experience. Back when they were the heaviest thing to come out of Long Island I think a lot of us took them as a bit of a joke. A "critic's band" is what Christgau called them, which is true enough, but too reductive. Sure, Kiss for pseudo-intellectuals, but now I feel like I'm in on the joke, and if the crowd at Club Paradise looked like it included every mullet from a 40 mile radius (Canada excluded) what we all got was a solid show that included a surprisingly deep catalog. I was surprised by how much of it I knew, actually; they opened with "Stairway to the Stars", and included "Then Came the Last Days of May", and my heart raced as soon as I heard the opening riffs of each. You could have put a gun to my head Thursday and I wouldn't have been able to come up with "Then Came the Last Days of May". When they were in their 20s and I was in my 20's I'm sure we both felt a lot more sinister. Now everybody I know (except Captain X, who went with me) laughed when I told them we were going. Phil Collins once joked that he looks like a golf pro-- Blue Öyster Cult look like the members of the country club, but that's okay-- so do I. The scoffers missed a great show.

Here's something you don't see every day: "The plaintiff maintains that she was deprived of a fair trial by several erroneous evidentiary rulings, as well as the improper conduct of the defense counsel. We agree."

My interest piqued, I went to the decision to see just what so moved the Second Department. "The defense counsel made many improper, inflammatory remarks during
the cross-examination of the plaintiff's experts and summation For instance, during the cross-examination of one of the plaintiff's expert witnesses, the defense counsel repeatedly characterized the witness's responses as "lies," accused the witness of "deliberately misleading the jury," and called him "an evasive person" as well as a "professional" witness. In summation, he stated "[T]he man is a lie," and argued that the witness was a "self-admitted professional witness.*** The trial court also improperly permitted the defense counsel, during the cross-examination of the plaintiff, to utilize the plaintiff's bill of particulars in order to suggest that she was litigious in suing another physician."

This must have been some transcript, because the stuff the Second Department is describing, while certainly aggressive, doesn't seem to me to rise to the level of reversible error. Maybe it is-- actually, now we know it is-- but calling an expert a professional witness has always seemed to me to be fair comment.

If Altimio Sanchez is the Bike Path Rapist then good-- Western New York just became a little bit safer. I think anybody who runs, anybody with a connection to UB and anyone who lives around here has felt a horrible chill whenever the case crosses their minds, and I suspect that it crosses everyone's mind from time to time. Of course, right now all we know is what Frank Clark is telling us, and that doesn't mean much. Frank Clark is, after all, the guy who is telling us what an outstanding piece of police work this is. I've seen Andy LoTempio do a lot with cases this bad. It's interesting to think about Andy, actually. This is it for someone like him-- when you get the biggest case of the century, you are the Big Kahuna among criminal defense attorneys. That's what this is, and that's what he is-- a guy who rose to the bench, then quit because he liked trying cases more. The funny thing about criminal law is that it is much more about temperament than any other field I can think of-- the people who do it are in it because they love doing it. The biggest case of a career that has included quite a few significant cases, but it isn't big because of the fee. The Sanchez family has just had their entire lives knocked out. House, savings-- all of it.

If it is Al Sanchez we will never know how such an ordinary, regular guy could have had this monstrous secret life. That will be beyond understanding, I think, so the most important thing about this is something we will never know. All we can know, actually, is that guilty or not, Al Sanchez' family has been destroyed by this. I can't even imagine what it is going to cost to mount a defense to this complex, technical matter-- I'm thinking that something in the six figures just for openers is probably about right, and I am not even thinking about Andy's fee. Just three more innocent victims.

Reading the news accounts of Judge Skretny's decision in the Casino case I was at first inclined to think that he'd punted. Now that I have read the decision, I take that back. He got it right, I think, and has written a careful, narrow opinion that counsel for the Seneca ought to read carefully before doing anything else.

"Buffalo buffalo buffalo buffalo buffalo...."I've been thinking about it since EGA told me about it: For any n ≥ 1, the sentence "Buffalo" is grammatically correct.

Wayne Barrett's piece on Brooklyn judicial corruption is as good an illustration as you could ask for as to why judges shouldn't be elected. The New York State Bar Association has taken the position that the state constitution should be amended to provide for merit selection, but the legislature is balking. It is not particularly surprising, when you consider it-- those reels of stamps are the sort of thing that would come in handy. Probably the most disturbing part of Barrett's article is that it doesn't even go into the above the table contributions that judicial candidates make. The fact is that judgeships are for sale-- it is a little sad that Charlie Hynes acts like he's surprised about this.

I picked up "Best American Essays 2006" in NoHo when we dropped EGA off, just in time for some airplane reading. Lauren Slater guest edited this year's edition, and once again I am struck by two things: the impressive quality of the work assembled; and the number of essays collected that I'd already read. I hadn't read Laurie Abraham's "Kinsey and Me", which leads off the collection, and was lulled into the pleasing thought that the set might contain some interesting writing about sex, but Ms. Slater's actual topic turned out to be mortality. Lots of people die in "Best American Essays" this year-- people's parents, Sam Pickering's dog, Adam Gopnik's daughter's pet fish, Susan Sontag, Saul Bellow-- but the saddest of the lot is Marjorie Williams, whose first person account about dying of cancer damn near made me cry when I read it for the first time last year, and almost did it again this afternoon. Ms. Williams wrote about her own death with such clear-eyed grace that I felt like gasping at almost every paragraph. It is almost a shame that her husband's little piece on affinity bracelets isn't included as a coda. Writing in Slate, Tim Noah said, "With so much to be aware of, awareness bracelets have reverted to signifying nothing more than color itself. Idealism has devolved into fashion. That helps explain why my dear wife, who died of liver cancer two weeks ago, and whom I miss almost more than I can bear—and certainly more than any colored wristband could possibly express—held the awareness-bracelet movement in undisguised contempt." That paragraph belongs in this collection.

There is a larger point here though. From Gopnik's essay about his daughter's goldfish: "Everybody had had a dead-pet problem. Goldfish had floated to the tops of bowls; hamsters had been found dead in their gages, their furry feet upward; and more guruesome inter-pet homicides had taken place, too. Each family had a different tack, and a different theory. There were those who had gone the full 'Vertigo' route and regretted it; those who had gone the tell-it-to-'em straight route and regretted that. In fact, about all one could say, and not for the first time as a parent, is that whatever one did, one regretted it afterward."

Gopnik is onto something there, but he doesn't quite go the whole way, and Williams, with death a daily companion, probably gets a little closer to the weird sadness of being a parent. Driving home from our Saturday run a few weeks ago Jim was talking about how his children mispronounce some words. "Aminals" was one, I think, and there was another that escapes me. "I don't correct them," he said, because I'm not in a hurry for them to stop being kids." His children are much younger than mine, and what I should have told him is that they don't, stop, really. They get older, and become Logicians or divas or level-headed beautiful young women, but it is impossible to look at your children without realizing how crazy lucky you are, and how precarious it all is. My heart breaks every day, every time I look at them.

Williams got it. "But from almost the first instant, my terror and grief were tinged with an odd relief. I was so lucky, I thought, that this was happening to me as late as forty-three, not in my thirties or in my twenties. If I died soon, there would be some things I'd regret not having done, and I would feel fathomless anguish at leaving my children so young. But I had a powerful sense that, for my own part, I had had every chance to flourish. I had a loving marriage. I'd known the sweet, rock-breaking, irreplaceable labor of parenthood, and would leave two marvelous beings in my place. I had known rapture, and adventure, and rest. I knew what it was to love my work. I had deep, hard-won friendships, and diverse, widespread fredships of less intensity.

"I was surrounded by love.

"All this knowledge brought a certain calm. I knew intuitively that I would have felt more paniced, more frantic, in the years when I was still growing into my adulthood. For I had had the chance to become the person it was in me to be. Nor did I waste any time wondering why. Why me? It was obvious that this was no more or less than a piece of horrible bad luck. Until then my life had been, in the big ways, one long run of good luck. Only a moral idiot could feel entitled, in the midst of such a life, to a complete exception from bad fortune."

I read that and I am reminded that I should be less churlish about my good luck.

In an email exchange with a friend the other day I opined that one of the tragedies of the Bush Administration has been that by squandering the United States' moral authority they have almost certainly hastened the end of the American Empire. I'm not so sure I'll see it, but my children certainly will. Oh, well, I guess-- empires do end, after all. People my father's age have seen the end of three or four, and I've witnessed the end of the Soviet empire myself. Driving back from NoHo I was struck by the BBC coverage of the resignation of Warsaw's archbishop, Stanislaw Wielgus, and it occured to me that although we have a pretty good idea of what an empire's collapse looks like we really can't say the same for what is going on with the Catholic Church. It seems to me that you'd have to go back to the Reformation to find something similar, and this just might be bigger. Not Wielgus himself, obviously, but the thing that he is a symptom of. It is one thing for an empire to lose moral credibility after all-- we could argue the point, but I'd put it to you that the US has been unusual in that its moral authority has been a basis for its claim to empire. The Soviets didn't make that claim-- they were more about historical inevitability. The Brits claimed it, sort of and the Japanese probably believed it, but were sure to back it up with the necessary firepower. You don't have to be the shining city on the hill to be an empire, but if you are a world religion that's pretty much the whole thing, and the Roman Catholic Church has really gone a long way towards breaking the bank. What will that look like, I wonder, the collapse of the world's largest religion? The history of the Reformation doesn't really inform the question-- it was too different a world.

Download the legendary "lost" Scepter Studios Velvet Underground demo. This sort of thing is the reason I only have 10% of my hard drive left.

It looks like the final version of New York's Code of Professional Liability has been fixed up to address most of the blogging concerns Nicole Black Matthew Lerner and I discussed with Jim Milles on his recent podcast. It'll be interesting to see how it shakes out. I read the redlined version linked to with a queasy feeling-- the folks at Grievance grind small, and Outside Counsel isn't something I'd want to have to explain for page after page after page. ("I didn't think it was advertising. I thought it was about Bob Dylan!")

I'm sorry that Justice Roberts thinks that the issue of judicial compensation has "reached the level of a constitutional crisis and threatens to undermine the strength and independence of the federal judiciary," but I'm not buying it. I don't believe for a minute that "The dramatic erosion of judicial compensation will inevitably result in a decline in the quality of persons willing to accept a lifetime appointment as a federal judge," and you shouldn't either. A federal appointment is a lifetime guarantee. Hell, even a New York State Supreme Court seat-- a 14 year term-- is worth well over a million bucks. Nobody becomes a judge for the money, but the money isn't bad, the benefits are great, and the intangibles are like no other gig I can think of. Occasionally one hears about a judge leaving the bench to make more money, but it is pretty rare-- and I can't think of the last time I heard of a federal court judge who did it. There are plenty of capable lawyers to fill the bench, and to suggest otherwise is to exalt the actual abilities of the present bench to a most unseemly degree.

Everything I've seen on Seriously Good looks like something I want to try making. I may start with Cranberry Mousse.