Outside Counsel

I was never a huge fan of "At the Movies", but I'm not really a fan of much television. Come to think of it, I'm no movie buff either. In a good year I'll have seen one or two of the films nominated for Best Picture, and maybe something with a super hero in it, but for the most part my movie viewing is done at home, and largely consists of what most people would consider "old stuff". In some ways this makes me an unlikely person to teach the class I'm finishing up next week. Actually, I've never really liked lawyer movies for the most part-- they always seemed either grotesquely unrealistic, like, say, "...And Justice For All", or a bit too close to the bone. In spite of these prejudices teaching "Lawyers in Movies" has been a real pleasure. The students have been fun to spend time with, and I have found that the focus that teaching a movie provides makes watching these movies a lot more enjoyable than I would have thought. Along the way I started reading the reviews archived at Rotten Tomatoes, on the theory that seeing how a movie was received at the time of its release might supply some insight. What I found in those reviews seldom made it into my lectures, but Roger Ebert, who I had seldom read up until now, proved to be a revelation. This guy loves movies, and his warmth and affection for what he is writing about comes shining through again and again. This is a valuable quality, I think. It is easy enough to snark about a movie you don't like; and it isn't even that difficult to be funny doing it. It is a harder thing to write something that takes the work on its own terms and fairly evaluates it. Ebert has been writing a series of reminiscences on his site, a kind of valedictory, I suppose, and the most recent is about television and movie critics, his experiences, and his observations about television film criticism. Recommended. (I found this via Byzantium's Shores)

In the earlier incarnation of Outside Counsel I had a recipe page, but now I don't. This Caramel French Toast was one of the things that I had there; I found it on Backup Brain back before I had a weblog at all. We're having it tomorrow.

Here's the thing about news media: it is important for it to operate locally and on a larger scale, but being local is difficult because of the economies of scale. It is important, for example for a city of Buffalo to have a newspaper with someone who writes about Congress and about the school board elections in West Seneca. One is concerned about what happens in your kid's high school, and one, maybe, about what your kid will be doing after high school. The problem is that school board guy is the guy who is the more irreplaceable and the guy who is more likely to be marginalized out of existence. Anybody can write about what Obama should do about Afghanistan-- hell, I might any minute now-- but real shoe leather reporting is a rare skill, and one that has never been over-valued in the marketplace. The poor bastard that has to go to the school board meeting and write it up is living large if the Buffalo News pops for dinner at Burker King on the way home, but David Broder doesn't lunch on such pedestrian fare. We have gone from a time when the country could support a fair number of papers with local bureaus all over the country to a time when only one can. The Washington Post, which was probably the last paper to actually have a realistic shot at becoming a national paper in the way that the New York Times has been has announced that it is closing its remaining domestic bureaus around the country. It has New York, Los Angeles and Chicago, and they are being offered reassignments in Washington. Three other reporters are being canned. So what does that mean? It means that the Post will be using free lance stringers or syndicated writers to cover the financial capital of the country, the West Coast, which manufactures intellectual content and related technology for the world, and the Midwest. Over the past decade, The Post has closed down its bureaus in Austin, (arguably the intellectual capital of the Southwest), Denver (perhaps the best vantage from which to understand the New West) and Miami (indisputably the capital of the Caribbean region). This means, in effect, that the morning newspaper of American government will no longer be reporting on the rest of the country. It means that information in the capital is now more homogenized than perhaps anywhere else in the country. This is a very bad thing. Blogs aren't going to fill the gap lost by not having "[the]knowledge and experience of reporters who come to understand the local issues, personalities and culture of other regions by living there, " because bloggers aren't going out and doing the reporting, and bloggers are never going to replace local reporters working for local news papers going out and figuring out who took what from who, then writing about it. In a crazy kind of irony "Freedom of the press belongs to the guy who owns one stops being true once everybody owns one; noise drowns out signal.

Here's an amusingly specialized blog: NYCOURTS-NEW YORK COURT CORRUPTION. "The information on this blog about the corruption in the New York Unified Court System will disgust and frighten you and propel you into a world of racketeering, greed, larceny, malicious prosecution, and outrageous disdain for due process, the Rule of Law, the United States Constitution, the Bill of Rights and Professional Responsibility Standards, Rules and Statutes. This is the Unified Court System of New York State. You will be a victim unless you speak up and protest."

It looks like it is a bit broader in its scope than the description suggests, although I think that captures the tone pretty well-- there is a long post about e-discovery, for example, that seems to stress how stupid most lawyers are about this topic.

"Klute" showed up in the mailbox the other day. It is very much a product of its time, I think, a sort of Second Wave feminist thriller. What works about it are the performances: Donald Sutherland generally rewards close watching, and Jane Fonda shows off the things we recall about her when we recall that she can really act. Watching "Klute" I was struck by the answer to a question that has bothered me for a while-- Is there any actor who has become reduced to the sum of tropes and tics more than Jack Nicholson? Fonda might be one. She's really of that generation, although she was Hollywood royalty, she is nevertheless part of that 60's milieu. She sports a wicked mullet in "Klute", which brings up another question: Has Jane Fonda been the victim of as many bad haircuts as Pete Rose?

To the Lou Donaldson Quartet at the Albright-Knox last night, the second concert in the Hunt Real Estate Art of Jazz series. Bruce Eaton has been producing these shows for eleven years, and we haven't been disappointed yet. Donaldson is 82, looks 20 years younger, and plays even younger than that, in a blues-funk mode informed by both swing and bebop. What really impressed us was the tight professionalism of his band, which roared into the set and never let up. The guitarist, Randy Johnston, was so good I lost track, amazingly fast, with a great tone and clear articulation. Interestingly two members of the band are Japanese. Fukushi Tainaka, the drummer, was tasteful and exuberant, but the real revelation, for me, was Akiko Tsuruga on the Hammond B-3. She was just loving every moment, and wailing. Sax/Organ combos are popular in Buffalo-- years back there were a number of clubs on Main Street and on the East Side, and Donaldson was a regular at them. The one that is recalled today was the Pine Grill, but Donaldson mentioned several others. This is only the second show in 11 years of the series that has featured the B-3, but for the second time the audience was more heavily African-American than is usual at these concerts. That chitlin circuit sound works best live, when it can really rumble you, and I have to wonder how a woman growing up in Osaka found her way into this music.

I'm very sad to learn that Jeanne-Claude, Christo's partner and collaborator, has died. The Central Park Gates was perhaps the happiest public art project I have ever witnessed. She and Christo created an afternoon for our family that I think we will always recall fondly. I know I will never forget the atmosphere of giddy happiness that seemed reflected in the eyes of everyone we encounterd as we walked through the park that day. My condolences to Christo, and to everyone else who loved her or her work.

New York's Court of Appeals got it right, I think, by holding that the State must recognize marriages that are legal where performed, including same-sex unions, and I am pleased that Western New York's own Judge Eugene Pigott wrote the majority opinion. During argument Judge Pigott had seemed troubled by the idea that holding this way would amount to telling "Canadians and ...Vermont residents and to people of other states that, 'You're more valuable to us than our own residents,' That, if you're married in Canada, we're going to recognize your marriage. But if you have a civil union or a domestic partnership in the state of New York we're not." As Outside Counsel noted at the time, the problem here is that there are two problems. First New York ought not treat its own residents like second class citizens. That said, different kinds of cousins can get married in some places, there are different rules for what constitutes legal age, there may even still be places that recognize common law marriages. As long as the marriage was legit where it was entered into, if you are living in New York you are entitled to the protection of the laws of the state of New York. That's been the rule for a long time, the Court of Appeals got it right in this case. Now it falls to the Legislature to repair the other problem.

Every week the Village Voice posts a list of the top selling records at a Village music shop. Greenwich Village is one of the few places left that even has record stores, and the feature is as much about the stores and what they feature as anything else, so it is something that I always turn to with some interest. Last week's store was Rebel Rebel Records. Its Top 10:

1. Various Artists:The Village: A celebration of the Music of Greenwich Village
2. Ricky Lee Jones: Balm in Gilead
3. Julian Casablancas: Phrazes for the Young
4. Noah and the Whale: The First Days of Spring
5. Patrick Watson: Wooden Arms
6. Richard Hawley: Truelove's Gutter
7. Swell Season: Strict Joy
8. Soap & Skin: Lovetune for Vacuum
9. Leonard Cohen: Live at the Isle of Wight (1970)
10. Jonsi and Alex: Riceboy Sleeps

I hope they sold a ton, but how many copies of "Balm in Gilead" do you suppose actually went out the door?

When I compiled my list for Lawyers in Movies I left "Philadelphia" (1993) off. Now it turns out to be the movie that a surprising number of the students in the class want to write about. There may be several explanations for this-- one that occurs to me is that its comparatively recent vintage may mean that it is a movie that they are familiar with-- but I'm looking forward to reading the papers they turn in.

I felt pretty good about the decision to try Khalid Sheikh Mohammed in federal district court. My feeling has always been that the United States justice system has a long history of being up to the biggest challenge, and that if it isn't than there is no point to pretending that the United States is any different than the worst sort of totalitarian government. It has been my suspicion that the reason the Bush Administration refused to make our courts available for this purpose was that the Bush Administration was afraid of both the revelations that such a trial would bring to the surface and of losing.

So I reckoned that we were looking pretty good on this, until I read Dahlia Lithwick's article about the argument before Canada's Supreme Court on the question of whether the Canadian government should government seek repatriation of Omar Khadr, a Canadian national presently held at Guantanamo Bay. And then I watched the argument. (Actually, I played it while I made this Alsace Onion Tart.) We have a lot of ground to make up in the US Court system is what I'm saying. First of all, this argument was conducted in public and televised so that every Canadian, and everyone else in the world could see it. The Justices and the lawyers engaged in a profound and far-reaching discussion that encompassed Canadian and international law. The level of advocacy was tremendous. Frankly, I cannot imagine something like this happening in an American court, and I only hope that we will get there some day.

For some reason I'd missed this: a Bob Dylan interview by Jonathan Lethem. (Actually, I know why I missed it: it was in Rolling Stone.)

"Let me take a moment and reintroduce myself, your interviewer and guide here. I'm a forty-two-year-old moonlighting novelist, and a lifelong Dylan fan, but one who, it must be emphasized, doesn't remember the Sixties. I'm no longer a young man, but I am young for the job I'm doing here. My parents were Dylan fans, and my first taste of his music came through their LPs — I settled on Nashville Skyline, because it looked friendly. The first Dylan record I was able to respond to as new — to witness its arrival in stores and reception in magazines, and therefore to make my own — was 1979's Slow Train Coming. As a fan in my early twenties, I digested Dylan's catalog to that point and concluded that its panoply of styles and stances was itself the truest measure of his genius — call us the Biograph generation, if you like. In other words, the struggle to capture Dylan and his art like smoke in one particular bottle or another seemed laughable to me, a mistaken skirmish fought before it had become clear that mercurial responsiveness — anchored only by the existential commitment to the act of connection in the present moment — was the gift of freedom his songs had promised all along. To deny it to the man himself would be absurd."

Lethem is making a valuable point here, and one that I think is too seldom made. Point of entry matters with Dylan's work. The reason going electric at Newport mattered to so many people, and is still probably the most written about event in his career, is that so many people came to him as a folksinger. My point of entry was a bit later-- I took "John Wesley Harding" out of the library, and the first Dylan side I bought was "Greatest Hits, Vol. II". (Did I own "Concert for Bangladesh" before that? I can't recall.) I was confused by "Self Portrait" but I didn't own it. Truth to tell, when I bought a copy last year to research my (still ongoing) Dylan live project it was largely unfamiliar to me. (Retrospectively it is still pretty bad, but it is not his worst, and there are things on it that are worth hearing. The material benefits from popping up randomly on "shuffle", let's put it that way.)

We've had the live album discussion here before, but the reissue of "Get Yer Ya Ya's Out" has me thinking about the subject again. As a pure consumer item this seems like a poor investment- "Midnight Rambler" is the only real standout track from the original album, I'd say. What is really intriguing here are the tracks from the opening acts, B.B. King and Ike and Tina Turner. Used to be that there'd be two or three opening acts at a rock concert, and although sometimes the openers were gawdawful, sometimes you got lucky and the opening act blew the headliners off the stage. I squandered a lot of money and a lot of time on Todd Rundgren shows once upon a time, for example, but I still recall being knocked out by Cheap Trick opening for Todd and Utopia at the Long Island Arena. I'd like to hear the stuff the other members of the Rolling Thunder Review played when I saw them at the Niagara Falls Convention Center, too.

I took a deposition yesterday in a case where we represent the plaintiff, and it reminded me of my early days in this glamor profession. One of the things that is tough when you are starting out is how lonely it is, particularly if you are plaintiff's counsel. I don't mean in the office-- there everyone is more or less going to be sociable, if only to complain. I mean in the courthouse, or at depositions. In those settings I always felt like Rudolf the Red Nosed Reindeer, watching the defense counsel chat, and always feeling left out. It's a tactic, of course, and in yesterday's festivities opposing counsel took it the next step. He's a nice enough guy, I suppose. I've practiced law in this town long enough to have known him for years, and in a social setting he is certainly genial, but it is a mistake to ever think that anyone's amiability is going to carry over into the arena. This guy is very careful to prep his witnesses to avoid specifics, since that's what can trip someone up later. Because taking depositions is a listening skill, if I ask, "What did he say to you?" unless I hear, "He said..." I am going to ask a follow up question. This is particularly true if the answer I hear is along the lines of, "I was concerned that...", or "It was dark, so..." or something else that isn't an answer to the question I have asked. I ask a lot of follow up questions, actually, because witnesses frequently answer the question they want to answer, instead of the question they are asked. This lawyer's deposition posture is siting with his head hanging down, occasionally shaking it and sighing as though he can't believe you are wasting everyone's time by asking such stupid questions. Sometimes he'll say wearily, "You've asked that fifty times!" Sometimes he says, "You already asked that and the witness told you X." (That's against the rules, but I do it too. Everyone does.) Sometimes he'll say, "What, did you go to the Paul Beltz school of depositions?" He's made that crack at each dep we've done in this case, and that's usually the cue for co-defendant's counsel to chime in: "I'm glad you have a rule in Buffalo that you pay for the questions you ask." (He's from Rochester, which has its own set of quirky deposition rules. Paul Beltz is the dean of Western New York trial lawyers, a very meticulous examiner, and generally regarded as a thorn in the side of the defense bar.)

Here's the thing: these are tactics. In fact, when I get a loud sigh usually what that means is that I'm on to something. I recognize the tactic, and I don't let it get to me, except that yesterday I was irked because it is such an obvious tactic. It didn't work on me when I was two years out of law school, and it isn't going to work on me now. I can't really call them on it-- they'd act as though they didn't know what I was talking about-- so I'll put it here, as a reminder to myself to talk about this with the students in my Discovery class next term.

"My Cousin Vinny" is number 3 on the ABA list of Top 25 Legal Movies, behind "Mockingbird" and "12 Angry Men". On its face this seems like a peculiar choice for the ABA, which isn't really known for its sense of humor, but I think if you dig into it a little it makes sense. "Vinny" is a favorite of a lot of lawyers, and one of the things that people like about it, aside from its easy-going humor, is that a lot of the courtroom stuff rings true. There is some first rate cross-examination going on there, and that's hard to do. What we tend to see in lawyer movies is either cross-examination that is really arguing with the witness, or cross-examination that has gone wrong because the questioner has asked the Question Without Knowing The Answer. In "Vinny" we are even shown the right way and the wrong way. The stuttering public defender asks one witness about his glasses, and learns that they are reading glasses. The witness can see just fine, and can even tell what color the defendants' eyes are as they sit at counsel table. Vinny has prepared, however, and is able to build an effective cross of the nearsighted old lady, including a persuasive demonstration:

Q: Mrs. Reilly, when you saw the defendants, were you wearing your glasses?
A: Yes, I was.
Q: Over here, dear. Would you mind putting your glasses on for us, please?
(She puts on her glasses.) Whoa, how long you been wearing glasses?
A: Since I was six.
Q: Have they always been that thick?
A: Oh, no, they got thicker over the years.
Q: So as your eyes have gotten more and more out of wack as you've gotten older, how many different levels of thickness do you think you've gone through?
A: Oh, I don't know, over sixty years, maybe 10 times?
Q: Maybe you're ready for a thicker set?
A: Oh, no, I think they're okay.
Q: I think we should make sure. Let's check it out. Now how far were the defendants from you when you saw them entering the Sack O' Suds?
A: About a hundred feet.
Q: About a hundred feet. Would you hold this please? (Running a tape measure). Sorry, excuse me, excuse me, sorry, sorry. Okay. This is fifty feet. That's half the distance. How many fingers am I holding up? (He hold up two fingers.)
Judge: Let the record show that the counselor is holding up two fingers.
Q: Your Honor, please, huh?
J: Oh. Sorry.
Q: Now, Mrs. Reilly, and only Mrs. Reilly, how many fingers am I holding up now?
(He holds up two fingers)
A: Four.
Q: What do you think now, dear?
A: I'm thinking of getting thicker glasses.
Gambini: Thank you.

The thing that makes "My Cousin Vinny" so unusual goes beyond just trial technique though. This is a lawyer movie in which there is no bad guy. The judge is tough, but fair. The prosecutor doesn't cut any corners, or hold anything back. There are no liars on the stand-- just people who are unsure about what they think they are sure of. The only scoundrel in the movie, really, is Vinnie himself, and he does the things a lawyer is supposed to do. He goes out and interviews witnesses. He takes the case seriously. He works hard, and he cares.

"My Cousin Vinny" is a lawyer movie that believes in lawyers and the legal system. A just result-- the correct result-- is reached, and it ends that way because the defendants' lawyer, Vinny, did his job. That's a good reason to put it on anybody's list of great lawyer movies, and congratulations to the ABA for getting it.

What with having a philosophy student in the house we find that we have been spending quite a bit of time in the realm of reason. This list of quips ("The ungainly attempt to tackle questions that come naturally to children, using methods that come naturally to lawyers.") is worth going back to. (Via The Morning News.)

Donald Barthelme's Syllabus. A list of 81 books that Barthelme recommended to his students. As it happens, thanks largely to Clay Lewis and William Ruckert I've read 34 of these. One semester they team-taught a four credit course called "Contemporary Literature" or some such. The fashion at Geneseo then was to have these monstrous surveys, taught by two or more faculty members. The idea was that you'd read a ton, and write a short paper every week, with a longer, more comprehensive paper two or three or four times over the semester. I took another like that with Ken Deutsch, (PoliSci) Bill Edgar (Philosopy) and Bill Martin (Economics) that amounted to a survey of 20th Century political philosophy and was one of the peak intellectual experiences of my life. There is a lot to recommenced this format, I think. Team teaching, done well, exposes the class to a diversity of opinion, and it spreads the load. I'm finding that goading undergraduates into discussion is not always so easy, and reading that many papers must have been horrible, but it was certainly valuable for me.

It's been years since I've read, or even thought about some of the books on Barthelme's list. "The Lime Twig" was one from the class that I took, and I was pretty knocked out about it at the time. I'm surprised that Robert Coover isn't on the list; we read "Pricksongs and Descants" that semester, a collection of stories that were shocking in their technique and freedom. Somewhere in out attic I probably still have the papers I wrote, and perhaps even the syllabus. Perhaps I should try to dig them out to use as a benchmark for the papers my students will be handing in. It's funny to think that the parade has probably passed by for a number of these writers-- there was a time when I thought John Barth was All That, but the moment passed for that sort of metafiction long ago. My respect for Kurt Vonnegut (we read "Slaughterhouse Five") has increased since then-- at the time I thought it was just a stunt, but now I think it may be the truest book to have come out of World War Two.

There is a lot on Barthelme's list that we didn't do-- Mailer is a personal obsession, a writer that my friend Kelly Kramer encouraged me to like; similarly Bellow. Chances are that undergraduates shouldn't be reading Saul Bellow anyway-- what could he possibly have been saying to me when I was in my 20s? My brother gave me "The Palm Wine Drunkard", a book I should get back to.

It was after seven when I voted this evening. I was number 195-- not much of a turnout.