Outside Counsel

1001 Rules For My Unborn Son. No reason to limit these to male offspring, generally sound. 334. Unless you served, no fatigues. 325. When excusing yourself from the table, you need not give a reason. 302. Never be the last one in the pool. 282. Never swing at the first pitch.

To Ted Nash and Odeon at Bruce Eaton's Hunt Real Estate Art of Jazz at the Albright-Knox yesterday, a show I had been looking forward to that still managed to exceed my expectations. Nash plays clarinet, tenor sax and bass clarinet, fronting a band with a violin, accordion, drums and tuba. (The tuba player doubles on slide trombone.) This oddball lineup is so traditional it's avant-garde, you know? There is a lot to hear in this music, which sounded like California noir meets tango, with more than a little Eastern Europe in it, as informed by New Orleans second-line jazz. I think what I liked best was when Nash and violinist Nathalie Bonin traded leads, but the whole thing worked brilliantly. The opening act was a pleasant surprise-- I do not mean to diminish The Other Side-- Kelly Bucheger, saxophone, Trumpeter Tim Clarke, drummer Doug Dreishpoon and bassist John Werick by describing them as local musicians-- really what I mean to say is that this outfit is around and available to be heard here in town. I plan on seeking them out again.

To "An Afternoon with Harvey Pekar" at the Central Library. It was an imperfect format, somewhat by necessity, I suppose. Pekar was interviewed by two librarians-- the Humanities Librarian and the Young Adult Librarian from the Erie County Library. Both were familiar with his work, but the questioning lacked spontaneity. On the other hand, Pekar is a rambling, discursive conversationalist, so the whole thing worked-- he'd go off on a question, sometimes losing the thread entirely, and sometimes circling back and answering it. He has a chosen method of expression-- he prefers "comics" to "graphic novel"-- and over a long career has managed to make that form work in ways that it really hadn't until he decided to experiment with realism in that form. I can recall when I found out about him: an article in the Village Voice led me to the purchase of American Splendor #2, the battered remains of which I still have. It was unlike anything I'd ever read: funny, and bitter, and wistful, and I followed his career the way you do when you feel like you've caught onto something before anyone else. I liked the movie, "American Splendor", but it wasn't the same as the comic by any stretch, and it wasn't really his project. Like a lot of artists Pekar expresses himself best in his chosen form, and that means that he is not a lecturer, and that a live reading wouldn't quite work either.

I'd have liked to have asked him what he's listening to these days, but instead I asked whether he feels as though his intended audience has changed over the years, and if that has changed his writing. (I thought "Our Cancer Year" was very different from most of "American Splendor" and felt more like a family letter than his other work.) His answer came down to "I'm writing for people who I think will get it," and fair enough. Interestingly, it seems as though he is becoming more political-- he described a thing he is doing about the state of the Palestine/Israel conflict, and something about Tom Payne. He's got a biography of Lenny Bruce on the spike at his publisher-- economic circumstances mean that he doesn't know when, or even if that will appear. Too bad: I have never found Bruce all that funny, or even all that provocative. No doubt that has more to do with the fact that Bruce was distinctly a product of his time, and had a short shelf life. I'd be interested in reading Pekar's take.

He looked pretty good for a cat his age, and a cancer survivor, and in person he was prickly but sweet. He says that the persona he adopted on Letterman was mostly an act, but I'm not so sure I buy that; he also says that his appearances on Letterman didn't really affect the sales of his work, which could be. The crowd was mostly older-- Ed Cardoni was the only person I recognized. (Hallwalls had brought Pekar to Buffalo twenty years ago-- during the talk that was mentioned, and Pekar had talked about the hospitality Ed and his wife had extended, I think without realizing that Ed was in the audience.)

Some time back, scrolling around, I came across the middle part of "The Spy that Came In From The Cold". I watched about ten minutes worth (Burton, sinking into drink, gets into an altercation with a shopkeeper in order to infiltrate the English Communists), then realized that this was too brilliant not to see in its entirety. I added it to the Nexflix queue, where it was buffeted about by the rubbish my family wanted to re-watch, until finally it washed up on our doorstep. Here's how it goes with me-- if I read a LeCarre, I get thinking that I ought to read a bit of Graham Green, and then I think some Joseph Conrad would be just the thing. Then I read the Conrad (there is still quite a bit that I haven't read), and decide that both Green and LeCarre just can't hold a candle, and I'm cured, and can go back to what I was doing.

This time I was set off on a LeCarre movie binge, and I ordered up the mini-series of "Tinker, Tailor, Soldier, Spy". I'd never seen it. I have a sort of rule about mini-series, but it's turning out to be more of a guideline, really. Anyway, in this particular instance it seems to me that the mini-series accomplished something that the book did less well, and that as a result the mini-series was in a way a more successful artistic accomplishment. One of the things that LeCarre is really out to do is to demonstrate how entirely interior his character's lives are, and one of the ways that he does this is to make his narrative full of claustrophobic elements. The caravan that Jim Prideaux lives in, the endless little rooms where meetings take place-- these things represent Smiley's mind. Very little of the activity takes place outdoors, and even England itself is a small island, a symbol of Smiley's head. To the extent that the action occurs outdoors or away from England it is largely in flashback, being related to Smiley, or Smiley's own recollections, being re-shuffled and re-connected with other bits of information. It seems to me that the flashbacks are more effective as a cinematic device than as a literary one, at least in this instance because as a written device we tend to lose track of the fact that the events being described aren't taking place in the now. We know that it is a flashback, or an anecdote, or a recalled memory, or whatever, but we do not experience it that way. As a cinematic device, at least in this work, we are always aware of this, because of differences in lighting, or perspective, or because we see the events with a voice-over narration describing them. (By the way, I usually hate voice over, which seems to me to be most frequently employed as a sort of cinematic cheat to capture the literary tone of the thing being filmed. Tinker, Tailor doesn't fall into this trap, and instead uses the technique magnificently.) The end result is that we experience the narrative in much the same hermetic way that Smiley does, and we understand Smiley better.

Naturally, I am anxious to start "Smiley's People". When this sort of itch occurs the only thing that can be done is to scratch it. Unfortunately LCA and A do not share my current infatuation with interior dramas about Brit spies, so we watched "Waitress" last night. The sad thing about "Waitress" is that it's writer, director, and co-star, actress Adrienne Shelly, was killed in the sort of stupid, horrible crime that we don't think happens any more. The movie is good enough that you can get past that terrible fact, and I recommend it to anyone who likes stuff about Southerners, or female empowerment, or pie.

Today is the 50th anniversary of Raymond Chandler's death. It is hard to think of a character less Chandleresque than Phillip Marlowe's creator. Here is a set of trailers from movies made of Chandler's work-- I've seen most, but not all. I like Dick Powell's Marlowe, and Elliott Gould's, just about as much as Bogey's, maybe more. I'd be interested in seeing James Garner's "Marlow"-- based on "The Little Sister", but Netflix doesn't seem to have it.

Electronic discovery shouldn't be a big deal, but somehow everyone seems to get it catastrophically wrong. D.C. Appeals Court Affirms Order Requiring a Non-Party to Spend $6 Million, 9% of its Total Annual Budget, to Comply with an e-Discovery Subpoena. "In the midst of a hearing, trial counsel agreed to restore backup tapes, search them using plaintiffs’ terms, and then produce all email and attachments that were not privileged. Obviously the attorney did not intend by this agreement to assume a $6 Million Dollar burden, nor did the client authorize their attorney to do so. How can you have a six million dollar agreement without a “meeting of the minds?” Yet, the district court keeps coming back to that agreement, made in the midst of a hearing, as the justification for requiring a non-party to spend 9% of their total annual budget to comply with a subpoena. The Circuit Court then upheld the decision as within the very broad discretion allowed to a district court to manage discovery. They did so without any comment or reaction as to the injustice of imposing this kind of e-discovery cost and burden." The take-away is that counsel needs to be careful about promises, which is always true, I suppose. (And thanks to A for pointing this out to me.)

Wouldn't you think that if you showed this list to the sorts of Americans that favor the death penalty they'd feel bad about being on a list with these other guys? Why isn't this a persuasive argument? What a classy list of countries, you know? Who's missing? I guess there are appalling sub-Saharan African countries that I'd expect to see, but really this reads like a roster of the worst nations in the world, plus Japan and us. It doesn't make me feel any better that most of ours were Texas, Oklahoma and Florida.

When I was in high school I commuted with my father to a summer job in downtown Manhattan. There was quite a bit to like about this, and one of the real pleasures of the experience was exploring the plethora of bookstores-- new and used, but mostly used-- in the area. My dad had a regular circuit, and from time to time we'd run into each other, but that was pretty rare. They are mostly all gone now, but here is a map and walking tour of many that are still there.

I'm not so sure that I'd pay £40 quid for it, but I like this poster, a reproduction of one produced by the Ministry of Information 1939 enough to make it my current wallpaper. Apparently it is a big hit with the Brits right now.

Popdose is an enjoyable site that features essays and music downloads. Lately it has been running a series of essays by producer Tom Werman about his experiences as an A&R man and in the studio which are right in my wheelhouse. Stories about how bands got signed and the business end of the music business are not common, but I love knowing that Gene Simmons and Paul Stanley were in a band called Wicked Lester, and that when they made it as KISS Neil Bogart bought back the masters of the Wicked Lester side Epic had purchased so that it wouldn't be released.

When my brother lived on the Upper East Side Kinsale was his local. It was the real deal then, and apparently still is.

I suppose that fake trend stories are such a journalistic staple that they should simply pass without comment, but the notion that the "use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges" is something new is too stupid to let pass.

In a way what the story illustrates is the shocking lack of valid social science research into our glamor profession. Although there are statistics that track some data about the courts mostly these concern gross numbers: cases in, cases disposed of. About as fine grained as it gets is whether a disposition was by verdict, on motion, or "other"-- usually settlements, by far the greatest number. Are there actually more mistrials being declared because jurors are using their phones to look stuff up on the internet? Actually, the story doesn't say. It's all anecdote. And when you think about it, are the anecdotes any different from what Henry Fonda does in "12 Angry Men"?

It's too bad that we are more scientific about our jurisprudence, because I'll bet the system would benefit from a closer study of what we do, how what we do affects outcomes, and the relative costs associated with our activities. Since the discovery process is my big academic interest I've been looking for some sort of reliable numbers about the costs of discovery, for example. What I have been able to find has not been anything that impresses me as methodologically valid-- mostly a lot of insurance industry numbers that seem tailored to create the impression that the insurance industry is beleaguered.

Judges give instructions about what jurors can consider. In my experience jurors take those instructions pretty seriously. Are there slip-ups? Hell yeah. Have smartphones increased the incidence of juror misconduct? Couldn't tell you. My hunch is not, but I'm not seeing any headlines out of that, and my hunch is every bit as anecdotal as John Schwartz' story. The Times found four instances of smartphone related juror misconduct. Three is traditional if you want to declare a trend, and in a pinch two will do.

I'm not going to be wanting confit for a while, what with it being more or less spring and all, but I'll be trying this when October rolls around. And duck pastrami-- I never got to it this winter, but I mean to.

Suddenly prolific, Bob Dylan is releasing a new side at the end of April.

When Rob Rosenbaum is at his worst he is so insufferable that I wonder why I bother. Here, for example, he goes into rhapsodies over a song called "Choctaw Bingo". This piece nicely captures the Rosenbaum quirks that most annoy. The hyperbole, for example: Ron thinks this number is "New-national-anthem-level genius." The irrelevant self-aggrandizement: Ron wants you to know that, like James McMurtry, the songwriter under consideration, his mom was an English professor too. Then there is the wrong-headed pseudo-liberalism: "Now, I have a thing about Indian casinos. I'm totally in favor of them. I think they're a disguised form of reparations for the theft of Indian land. I'm glad the tribes are making billions taking the foolish white man's money. They deserve it." Easy for you to say, Ron. The Shinnecock who occupied the Bay Shore estuaries where you and I grew up aren't planning on building a casino on the Upper West Side where you live (although apparently they'd like to repatriate the Shinnecock Hills Golf Club).

On the other hand, because he is Ron Rosenbaum and can't resist self-referral, in his lede he links to a similar piece about Joni Mitchell's "Amelia", and although that article also falls into many of the same traps ("Bob Dylan once told me...."), the article nicely captures and explores the nuances of an appealing, complex song.

The lid on the jar of the organic peanut butter that LCA favors has a drawing of a raccoon spreading the product on a piece of bread with a knife. It's not a cartoon raccoon-- it is realistically rendered, and every time I look at it I marvel at the twisted mind that could conjure a knife-wielding raccoon. If I walked into my kitchen and saw this thing I don't think I would ever stop screaming. Arming bears is one thing-- it's enshrined in the Constitution. Giving raccoons knives is another thing altogether, and is just begging for trouble.

I love it when there is a split in the Departments. Because we practice all over New York it means that we have to keep track of what the law is in different places, , but it also means that we can sound erudite. Lots of times that's as much fun as our glamor profession offers. So, in the Third Department the defense of primary assumption of risk is only available in cases arising out of athletic and recreational activities. Trupia v Lake George Cent. School Dist.. Assumption of risk looks a lot like plain old contributory negligence when it is applied outside the realm of sport, so I'm liking this outcome; now that there is a split we can expect that the Court of Appeals will weigh in sometime in the next ten years or so and clear things up for us.

Good interview/profile of Linda Barry. It is interesting to think about people who are uniquely American characters, and Barry is certainly one. In that awkward time leading up to the 21st century we had a number of them, and I connected to quite a few through the Village Voice, which is where I came to know Barry's work. I almost wrote, "came to know Barry" because that is how her work felt to me, and it is interesting to think about the artists that have that effect on you too. You can read all of Edith Warton, say, and not feel like you'd have anything to say to Edith Warton if you met her at a party, but I'm not so sure that Herman Melville holds you at the same arm's length. Linda Barry always seems like she is writing so personally that it might as well be about me as her, and that is a pretty remarkable accomplishment.

I like the alternative Shamrock course. It is hillier, sort of, but the climbs are shorter, and it took us through parts of the Ward that I'd never seen, past bars I'd never heard of. (Tuni's Tavern looked good.) They should consider alternating this course with the "classic" course-- it would be interesting to have a race with that sort of variety. It's fun to race over a new course-- I don't do it often enough, and I found that I enjoyed not knowing what was coming next. The rain wasn't bad during the race, although it made the grating on the bridges slippery, but after the beer tent was kinda gross, so I didn't stick around long.

Scott Lemieux is good on why the Yoo memos are so troubling: bottom line, we're lucky the worst fantasies we had about Bush didn't come true, because he was being counseled that he could do anything he wanted. "Among other things, these memos asserted that the "war on terror" might trump first and fourth amendment rights, that the Posse Comitatus Act would not prevent the military from being used for law-enforcement purposes if terrorism was involved, that statutory restrictions on warrantless surveillance could be ignored and that Congress could not in any way regulate the detention or interrogation of terrorist suspects."

I was surprised when the election went forward four years ago-- suspending it would have been just the sort of thing I could have imagined Bush doing. It was less likely to happen this last time-- Bush was clearly sick of the job, and even he must have realized that he'd made a thorough botch of it. What really disturbs me about the Woo memos, though, is that they are the exact sort of thing that good lawyers must never do. It is not our job to make stuff up. We are supposed to counsel our clients about what the law is, even if it is not something they want to hear. The quality of the lawyering in the Bush Administration was shockingly bad. John Mitchell was a crook and a thug, but he was Clarence Darrow, Atticus Finch and Daniel Webster all rolled into one compared to the Bush crowd.

Why yes, that is LCA in yesterday's NeXt section of the Buffalo News, rehearsing for "Urinetown".

It's no secret that Howard Dean isn't Secretary of Health and Human Services because he butted heads with Rahm Emmanuel over how to spend DNC money on congressional campaigns. It is ironic that Obama won by doing what Dean created the template for, and I wish there was a place in the Administration for him. He's a class act.

Good review of the current David Byrne show which we saw back in November. John Stewart had Byrne on last night, but the performance of "Life Is Long"-- a number from the new side-- didn't capture how engaging the number was live.

It's good to see Byrne out there. He's been somewhat of a fringe artist since the demise of Talking Heads, and although I followed his work for a while I gradually lost interest. I'm interested again-- the show at the Center for the Arts was one of my highlights from last year, and I would make a point of seeing him again.

I took the gray cat to a new vet the other day, and it was a refreshingly sane experience, largely devoid of anthropomorphism. At the old vet they'd ask stuff like, "What is L******'s last name?" ("Uh, I don't know. Cat, I guess. Or Katz-- maybe she's Jewish. Middle initial T.") These people were pretty clear on the concept-- they were dealing with an animal, and although they used a soothing tone of voice, there was no baby talk. I just noticed that the label on the prednisolone they prescribed has the cat's name on it, and says "feline"-- the old vet put my name on the lable, which made me worry about what I'd say if USATF ever came to my house for a random drug test. Not a particularly likely contingency I will concede, but still, how lame does-- "No, really, I'm just holding it for my cat" sound? Floyd Landis didn't even sink that low. No matter what the vet is going to be full of crazy people-- pet ownership is a peculiar thing. Yesterday, for example, we saw a little old lady with the biggest Rottweiler I've ever seen. She needed someone to help her get it to the car. What the hell is a lady like that doing with a dog like that? Sounds like a Marie Prevost tragedy in the making. The old vet was a cat specialist, but I like a vet with dogs and cats-- I believe in diversity, and think its important for pets to be exposed to different points of view. (Thanks to Again With the Comics for the image.)

As stupid and wrong as New York's system of electing judges is, at least we have merit selection processes in place as we go up the appellate ladder. In West Virginia they elect 'em all, and they apparently don't have any sort of system to require recusal. My hunch is that the Supreme Court isn't going to disturb the West Virginia Supreme Court's reversal for the same reason that it declined to find New York's judicial selection process unconstitutional. As Justice Stevens said, "I think it appropriate to emphasize the distinction between constitutionality and wise policy,The Constitution does not prohibit legislatures from enacting stupid laws."

The answer really isn't public funding for judicial elections-- that would still leave "judicial selection to voters uninformed about judicial qualifications". Being a judge isn't an easy job-- although I think we sometimes flatter ourselves overmuch when we emphasize the intellectual rigor that's required to be a judge or a lawyer. There is nothing about the job that suggests that the qualities called for are best found in popularly elected individuals. The other day I ran down the list of the judicial screening panel here in Western New York, and the fact is that every single one of the people on that list-- political though they may be (and they are)-- is supremely well-equipped to pick judges. This is simply not true of jes' folks. I think that maybe judicial screening panels could be improved by having a law professor or dean, and even a layman or two-- but a popular election is a terrible way to get judges.

Too bad Dahlia Lithwick missed the Joseph G. Makowski scandal in her brief run-down of recent stories about out-of-control judges. The Makowski thing is a real beauty. Apparently the deal is that he will indeed keep his pension rights unless the State Commission on Judicial Conduct retroactively removes him. The Commission has 120 days to act.

The Buffalo News thinks that the DA did a swell job here, but I'm not so sure. At a minimum it looks like there was a conspiracy to obstruct justice, and there is some talk that there may have been additional parties to the conspiracy. I don't see that giving a crooked judge a walk is such a great bit of prosecutorial discretion-- it seems to me that on the spectrum of these things Crooked Judge is far worse than DWI Lawyer, or even DWI Lawyer who offered a false instrument and attempted to tamper with physical evidence. Incredibly, Makowski is actually still on the bench, and will be until March 6. Even if he wasn't hauled off in irons, you'd think he'd have been frogmarched out of the building, but in fact he is still working on cases.

How'd we get this guy? The Buffalo News' Bob McCarthy lays it out nicely. "The judge, you recall, arrived at the bench in a time-honored way — he gained the favor of the Erie County Democratic chairman. Back in 1998 when Makowski was elected, he served as the party’s chief fund-raiser. That, combined with the mutual interest of the Democratic and Republican chairmen, earned him bipartisan backing and guaranteed his election.

"But Makowski believed he had a further obligation — this one to the system that got him there.

"He raised $33,575 for his campaign—even after his election was guaranteed. He gave $27,535, or 72 percent of what he raised, to the two parties and other campaigns — the highest percentage for any State Supreme Court candidate that year.

"Makowski paid $9,000 in various ways to Erie County Democrats, $7,500 to Erie County Republicans, $2,000 to a fund supporting Democratic gubernatorial candidate Peter Vallone, $1,100 to State Senate Democrats, $1,000 to Senate candidate Chuck Schumer, along with other donations.

"In addition, Makowski and his wife contributed $5,100 of their own funds to the Assembly campaigns of Susan Peimer and Brian Higgins — top Democratic priorities that year.

"Makowski even paid a headquarters staffer $3,400 in consulting fees for a campaign in which he had no opponent.

"I had no ethical or political problem with it," Makowski told The Buffalo News in 2002. “I was on the ticket; my name appeared on the ballot. As a candidate, it would be expected you would support the ticket consistent with the ethics."

People have been marveling at Mr. Makowski's arrogance, and how it blinded him to the risk he was taking-- and the offense he was committing, but viewed as McCarthy describes it perhaps it isn't all that remarkable. He paid good cash money for the job-- why shouldn't he do whatever he wanted in it?