Super Lawyers
William C. Altreuter

Thursday, December 20, 2007

The Court of Appeals says that Supreme Court properly exercised personal jurisdiction over defendants, an individual and corporation, both residents of California, who retained a New York attorney to represent the corporation in an action brought in an Oregon federal court because the defendants' retention and subsequent communications with the plaintiff, a New York lawyer, established a continuing attorney-client relationship and thereby constitute the transaction of business under CPLR 302(a)1). Fischbarg v. Doucet,et al.

Think about this- doesn't it kinda screw the New York bar out of doing transactional or consulting work for clients that might not want to subject themselves to the tender mercies of our courts?

Wednesday, December 19, 2007

For the past couple of years I've been carrying a pocket notebook around, to take notes and jot down things I want to remember. Like my brain, my notebook is kind of a whore's top drawer, full of useless odds and ends-- even more so, if you can imagine, than Outside Counsel is. Among the things I record are turns of phrase or idiomatic expressions that I want to try to remember. Some of them are familiar-- a colleague talked about "a couple of different ways to skin that cat if you need to" at a conference, and it seemed to me that using cat skinning as a way of describing alternative methodologies is still a useful turn of phrase. Some others I heard this year:

A "slip seat operation" is what it's called when you run a trucking company where the drivers are interchangeable.

When someone runs down a checklist without actually checking on each item they are "pencil whipping".

When you tell the bank your card has been stolen they say that it is "hotted".

I may have mentioned that I "tacoed" the wheel of EGA's bike when I ran it into the overhang of the parking garage.

"What should you do if you meet a tiger in the forest?" "Nothing. The tiger will do everything himself."

An aphorism attributed to a number of different writers: There are only two stories-- a man goes on a journey; a stranger comes to town.

Two different funny things that EGA said over Thanksgiving. She was descibing how he toaster had caught fire when it didn't pop up, and noted that this had never happened before, and hadn't happened since, leading her to conclude that it was Hume's toaster. Discussing the movie "101 Dalmations" she observed that one of the litter in the movie, Dipstick, does not appear in the book. "He's a non-canonical puppy."

The compiler of the Yale Book of Quotes has a list of this sort of thing too.

Liesl Schillinger on Christmas mysteries: "There is so much we do not understand about Christmas. For instance, why do we sing "Oh bring us some figgy pudding" every December, when if anyone were to hand some to us, we wouldn't know what it was? (And when the song "Winter Wonderland" comes over the radio, babbling, "In the meadow we can build a snowman, Then pretend that he is Parson Brown. He'll say: Are you married? We'll say: No man. But you can do the job/ When you're in town—" What does this even mean?)"

Ms. Schillinger is more interested in why some foods are associated with the holiday, but I find Christmas songs even more mysterious. The other day LCA and I were discussing "Jingle Bell Rock". I maintain that it is a song about a horse, but LCA argues that the Jingle Horse is at best an incidental character. There seems to be no way to resolve this issue. "Jingle Bell Rock" is only mildly annoying as Christmas songs go. Although I find "The Little Drummer Boy" excruciating, I cannot deny that it sounds like Handel's "Messiah" compared to "Grandma Got Run Over By A Reindeer" or the song about the Christmas shoes. Hell, the song about the shoes makes "Rudolf the Red Nosed Reindeer" sound like "Hark the Herold Angels Sing." I kinda like "Santa Baby", which I've thought of as a Unitarian hymn since I saw it performed by the shaman and two parishioners at A's church a few years ago. A was not in attendance, and denies that this could have happened, but it is nevertheless true. I'm not sure what I was doing there, but I know what I saw. Speaking of things people saw, "I Saw Mommy Kissing Santa Claus" is inexcusable. I have been called to task for being critical of John Lennon in the past, but I would be remiss if I didn't mention that "Happy Christmas (War is Over)" fails to enhance my holiday mood. It has as its sole virtue the fact that it is superior to "Do They Know It's Christmas", which is not only lousy, but condescending as well.

Thursday, December 13, 2007

It has long been an item of faith with me that Ike Turner recorded the first rock'n'roll record-- "Rocket 88", with the Kings of Rhythm at Sun Studio in 1951, under the name Jackie Brenston and his Delta Cats. Just last night I read in Dave Marsh's Rock'N'Roll Confidential that some historians say that Roy Brown's 1948 single, "Good Rocking Tonight" deserves the title, and this morning I learned that Ike is dead. Poor son of a bitch, he will be remembered for being an abusive husband, instead of for being one of the inventors of an American art form. I don't doubt that he was an abusive bastard, but that hardly makes him unique among artists, and few artists can claim to be the originators of a form the way Turner was. It seems to me that there is a racial element to the fact that it is Turner's brutality that is called up when we speak of him, rather than his accomplishments, and although I'm not inclined to adhere to the rule that one should not speak ill of the dead, in this instance I'd say that there will not be enough said about "Proud Mary" or "River Deep-Mountain High" or the other positive things he brought to the world.

Wednesday, December 12, 2007

New York does not recognize all that many privileges. Attorney-client; spouse; Physician, dentist, podiatrist, chiropractor and nurse; clergy; psychologist; social worker; Rape crisis counselor. (Library records are confidential, but subject to release pursuant to authorization or subpoena.) CPLR §§ 4502-4510 sets them out. There is a bill pending which would add parent-child to the list. The overall trend in modern jurisprudence is away from privileges, the theory being that full disclosure is the best means to achieving a just result, but New York jurisprudence seems to favor the notion that certain confidences made in good faith ought to be respected so that the relationship between the party and the lawyer/doctor/shaman/shrink is not compromised out of a fear of disclosure to third parties. I can tell my doctor things, the theory goes, because I know my secret is safe with him. (Filthy things, it should go without saying.)

It is surprising how often this does not come up. In personal injury lawsuits the privilege is deemed waived, so your medical/psych records are disclosed. I've bumped into the spousal privilege occasionally, but it is rare, and attorney client is big, but I don't think I've ever seen the others raised.

All of which is further to my ongoing thoughts on Arons v. Jutkowitz, the case that holds that plaintiffs can be compelled to provide authorizations to defense counsel permitting ex parte interviews with the plaintiff's non-party treating physicians. (It seems to come up mostly in med mal cases.) Those who favor this holding seem to do so on the grounds that the privilege has been waived, and that, in any event, just because the doctoris authorized to speak doesn't mean that he is compelled to do so. He can decline the interview. There is a nomenclature issue here: the Court of Appeals talks about "informal discovery", as though interviewing a doctor is the same thing as ex parte interviews of litigants' employers, co-workers, family members, friends, baby sitters, doormen, hair dressers, chauffeurs, or whatever. This is investigation, not discovery, and although these people might have confidential information that a litigant might not want the source to share with an adverse attorney,there is no law prohibiting the attempt to interview these people. Rules of civil procedure do not, and probably should not, cover investigative methods. It is a bit different with doctors, I think, because our expectations about our communications with doctors are different.

Even getting past that, though, I have three problems with the state of the law as it now exists in the post Arons world. Maybe it's really 2.5. First, the post-note of issue thing is a mess. The Note of Issue has become the vermiform appendix of New York practice: useless as a practical matter, and dangerous when inflamed. Perhaps Arons is one more reason to re-think calendar practice; certainly it is an illustration of the sort of mess we get when we start acting as though rules that are inconvenient aren't rules we need to follow.

Second, I think the ex parte aspect of the interviews contemplated is very troubling. It is all very well for the Court of Appeals to call this "informal discovery", but discovery has rules. This decision takes discovery out of the sunlight provided by notice and the rights to object (such as they are), and all of the other picky little rules that are an automatic part of our assumptions about how law is practiced and stuffs it into a dark basement for a going over.

Finally,there is already a mechanism in place for conducting discovery of non-parties-- even doctors. Subpoenas and non-party depositions work fine, do not require judicial involvement, and operate transparently.

I'm already reading about litigation over this. (See, e.g. New York Defendant Demands 76 Private Interviews In Wake Of Arons Decision.)

The danger isn't in Arons-- it is that the plaintiff's bar isn't going to sit still for this, creating the real risk of some bad legislation.

Monday, December 10, 2007

I'm not familiar with City Journal, but apparently my brother is, and he passed along this article about the Queen City of the Lakes.

Monday, December 03, 2007

The Scottish Diet is an ingenious nutritional system invented by the Scots to keep their pension funds in balance by reducing the number of people who make it beyond the age of 60. Like many of the world's smartest inventions (most of them invented by the Scots), it is devilishly simple. It increases the premature death rate through a well-balanced diet:

The Scottish Diet
«Any and all things you can eat, But this proportion always heed:
# A third from fat
# A third from sugar
# A third from alcohol
From time to time, you can eat a small amount of fruits, in the form of jams or preserves, or even better, distilled.» (Via A Hamburger Today.)

Sunday, December 02, 2007

I've been thinking about Jerry Sullivan's column on why college football should have a playoff structure, and it seems to me that he got it exactly wrong. College sports do not need to be more like professional sports-- college sports should be less like the pros.

Sullivan didn't go to Missouri because of its sports program--I'm guessing he went because it has a solid J-school. That is the point of college for the overwhelming percentage of students, even the ones that go to Notre Dame. Sullivan is proud of Missouri because he is proud of the work he did there, not because the school was Indoor Track and Field champion in 1965.

I think there is a tendency among sports fans to lose track of the fact that the athletes on the field on fall Saturdays are kids in their late teens and early 20s. They are, in other words, just out of high school, and the emphasis that is placed on activities that are, after all, merely diversions has has had the effect of sadly warping the world view of too many of these (mostly) boys. Women's sports have largely avoided this trap, to this point, and one effect of this has been that most women athletes seem to be a lot better adjusted people. For every Marion Jones you can think of there are dozens of male jocks who are famous for their sociopathy. Let's face it, O.J. Simpson is merely a particularly prominent example of of a type that we know all too well.

Let the kids be kids, I think, and let's try to keep in mind that the over-emphasis on sports in college tends to corrupt the very institutions which we should be looking to when we want to know what is best about ourselves. I believe that sports can and do teach valuable lessons about success in life, but they don't teach everything about what we need to know. Sports can and should teach about delayed gratification, and cooperation, and about the value of preparation. Sports teach us about valuing our bodies and our health. Unfortunately, too many college sports programs actually teach values that are antithetical to these qualities. "It ain't cheating unless you get caught." "Winning isn't everything, it's the only thing". This way of thinking is actually a grotesque distortion of the values that we think sports should be teaching.

Would a playoff system to determine a college football football national champion promote the positive things that sports offer, or further the corruption of the ideals we love sports for? It seems to me that the answer is fairly obvious. We are talking about a big money operation as it is. The NCAA has not exactly covered itself with honor when it comes to policing college sport-- even the professional leagues have a hard time doing this, as evidenced by the NBA officiating scandal, the forthcoming Mitchell Report in major league baseball, and similar controversies in any other sport you can name. Is creating a new set of big ticket games that are priced out of the range of students' pocketbooks really the answer? Of course it is not.

Beyond that, creating a playoff scheme would remove one of the chief charms of college football. As it happens we are coming to the end of one of the most entertaining college football seasons in memory. From week to week there has been the kind of pleasant tension that only comes from knowing that anything can happen, and probably will. EGA started grad school at Indiana this year, so I have been following the fortunes of the Hoosiers, an exciting ride with a great backstory. As I write this Indiana is on the bubble for a Bowl bid, which EGA tells me has the campus buzzing. It made this weekend's games that much more interesting to follow, too. Because Ohio State is back in the running to play on January 7, the possibility of Indiana receiving a bid is improved. Sorry, Jerry-- as much fun as a Mizzou- West Virgina match-up that might be, it was not enough to keep me from hoping to see Oklahoma beat your the Tigers. All over the country there are students and alumni and fans enjoying a thrill about the seasons the college team they support have had, and fans who watched games yesterday in the hope that a win or a loss by a school's team that they don't ordinarily follow might help a team that they do. The present system spreads that emotion around and is a good thing. Consolidating college football into a playoff system would diminish this, and although I suppose it might make the sport bigger, it would do so at the expense of the joy of a greater number of supporters.

And speaking of Ohio State, isn't that the exact thing that all of college football would turn into if the NCAA went to a playoff system for college football? I can't think that this would be a good thing-- Ohio State is a legitimate institution of higher learning with a reputation that resembles Mike Tyson's as a result of the way it runs its sports programs. That's a shame, not something to emulate.

Is college football-- or college sport-- a broken system? Yes, I think we have to agree that it is. Is professionalizing it the solution? No, I'd say that the professionalization of college sport is precisely the problem. We don't need a system to determine a national champion in college football-- that is placing the emphasis away from college, and that's the wrong place to put it.

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