Outside Counsel

Ten movies that weren't made. Twenty sci-fi movies that are coming next year. And five MGM movies that might be shelved. The Beatles in "The Lord of the Rings" works for me. So does an X-Men prequel. Green Lantern I have my doubts about: it seems to me that in the comics he mostly used his ring to create giant boxing gloves, although I understand he got a lot more angst-y once I stopped reading them regularly.

Doc Ellis' no-hitter.

I don't know why this is, but "The Maltese Falcon" haunts my practice. For the past few months we've been negotiating the final terms on a settlement agreement in a fairly substantial matter. Most of the fine points have been picky issues between the plaintiff and the other party to the matter, but when they'd worked out what they wanted to do I offered to draft the settlement agreement. I floated a draft to co-defendant's counsel to be sure that it reflected what they needed, and after some editing I emailed a copy to the plaintiff's attorney. A week or so later I received a certified letter and an executed settlement agreement, which I was supposed to sign and forward to counsel for the co-defendant. Thing is, the version I sent had 15 paragraphs, but the one I received had only eleven.

"Gutman stopped rocking. "Just a minute, my dear." He held up a thick hand. Hadn't you better leave the envelope in here? You don't want to get grease spots on it."

The girl's eyes questioned Spade. He said in an indifferent tone: "It's still his."

She put her hand inside her coat, took out the envelope, and gave it to Spade. Spade tossed it into Gutman's lap, saying: "Sit on it if you are afraid of losing it."

"You misunderstand me," Gutman replied suavely. "It's not that at all, but business should be transacted in a business-like manner." He opened the flap of the envelope, took out the thousand dollar bills, counted them, and chuckled so that his belly bounced. "For instance there are only nine bills here now." He spread them out on his fat knees and thighs. "There were ten when I handed it to you, as you very well know." His smile was jovial and triumphant."

It's been a summer that has been marked by two bad sports calls-- the disallowed goal in the USA-Slovenia game and the nearly perfect game pitched by Armando Galarraga, and in both instances various commentators have used the event to call for replacing or supplementing the human official with some sort of technology. I'm not so sure I think that's a good idea, but after years of taking testimony in tort cases I am pretty convinced that people are bad at describing what they saw-- and that their descriptions are a poor basis for assigning liability. I was reminded of this when reading Dibble v. New York City Transit Authority, --- N.Y.S.2d ----, 2010 WL 2486802 (1st Dept, 2010) handed down yesterday.

Dibble fell onto the N train tracks at 14th Street and was run over. At trial the jury reached a verdict finding that both plaintiff and defendant were negligent, attributing fault 65% to defendant and 35% to plaintiff. The First Department reversed, holding that he jury's determination that the accident could have been avoided was based on "nothing more than a series of estimated stopping distances that incorporated purported average reaction time", that the plaintiff's case was based entirely on impermissible speculation, and that the verdict was thus based on insufficient evidence

The plaintiff's expert testified about stopping distances and reaction time, but "none of the variables utilized by the plaintiff's expert to calculate possible stopping distances were established conclusively at trial. All were estimates or approximations"-- even though they were estimates that the operator of the train testified to. In addition, "in determining that the defendant's train operator failed to exercise reasonable care because he could have stopped, the jury improperly equated negligence with possession of a motor skill that is essentially a reflex action. Moreover, in this case, the motor skill that determines the reaction time in any individual, and which is measured in seconds and fractions of a second, was assumed to be the purported average of just one second with no variability for identification, analysis and decision." Bottom line: "the use of an average reaction time of one second implicitly renders negligent any train operator with a longer than average reaction time"-- and this is an insufficient basis for assigning fault.

We're walking the razor's edge here, but I think this is a notable development. The trial judge, who I know to be careful and intelligent, allowed the case to go to the jury based on the estimates of the train operator and testimony from the plaintiff's expert based on those estimates. The expert's opinions were pretty standard fare. I can't tell you how often I have heard reaction time testimony like this, and certainly Judge Stallman has heard it more than I have. The problem is that this kind of testimony pretends that it has more precision that it could possibly possess.

It is probably no longer true that the stakes are higher in civil litigation than they are in professional sports. The jury in the Dibble case made an award of $3.5 million-- how much would the perfect game been worth in endorsements and in Galarraga's future contract negotiations? What is the value of a World Cup win? Cumulatively however the civil justice system's reliance on pseudo-science has a huge cost, and I wonder if the Dibble decision is the first step back.

The Making of Blonde on Blonde in Nashville.

Manute Bol was the Roberto Clemente of basketball. I'm with Charley Pierce -- put him in the Hall of Fame now.

Concluding LCA weekend, this performance at Community Music. She called an audible and threw off her accompanist, but otherwise a solid performance of "The 49¢ Deer". Freebird!

GeoTagged, [N42.91901, E78.87787]

It's LCA's world and we're just living in it, at least this weekend. Closing demonstration last night, prom tonight, vocal recital tomorrow. She's like the opening credits to a 90's chick-com.

You know what has gotten really old? Sports columns about how Americans hate/don't understand soccer. For the most part these pieces amount to the self-exaltation of the author's own ignorance or jingoism, but beyond that they are also demonstrably false. ESPN wouldn't be broadcasting these games twice a day if nobody was watching, and it wouldn't be running live banners on its home page if people didn't care about each match. A generation ago Frank Deford could quip that "soccer is the next big thing, and it always will be", and it was funny, but a generation ago Frank Deford was funny. Things change. Boomers may not have grown up watching soccer, but we've aged into and beyond parenthood watching our kids play it, and for our children World Cup is as exciting as any other tournament. It is probably true that Americans don't engage as much with the sport on a sub-national level-- the MLS certainly doesn't excite me, and unless it's on in a bar where I happen to be I will not really linger over a Premier League match. That's not the same as saying that I don't enjoy the sport though-- unless it's on in a bar where I happen to be I will not really linger over a Triple A baseball game either.

There has been some grumbling about how dull this World Cup has been so far, but I'm not buying it. The first matches in the group round are frequently marked by conservative play, but there has already been a big upset, and there are quite a few teams that are already confronted with "de facto play-in games". The next stage could have a very different look than years past-- France, Italy and England are in trouble, and so is Spain. How weird would it be if none of those got through?

(On the other hand, I thought this was pretty funny.)

UPDATE: It's still early going, but wouldn't it be a trip if Italy, Spain, England, France and Germany didn't make it through? They are each in some measure of trouble....Latin America is dominating, Asia is surprising, and Eastern Europe is coming on strong.

An interactive map that shows county-to-county migration paterns. This is Erie County. An oddity: the same number of people moved to Westchester as moved from Westchester.

Surrogate's Court makes me hyperventilate. In theory I should like the fact that there is a whole separate code of procedure for it-- I am a procedure maven, after all. In reality however it presents as a dense thicket full of odd nomenclature and potential traps. When I was practicing full-time in New York City the Surrogate's Court impressed me as a hotbed of corruption, filled with clerks who had their hands out, and since I moved to Western New York I have had essentially no dealings with the institution. Since I'm a tort lawyer I stick to the regular trial courts. When we've had wrongful death matters the estate stuff has been handled by the referring attorney, and I've made it my practice to submit the compromise petition to the Supreme Court judge who had the case, rather in Surrogate's. Supreme Court and Surrogate's are courts of concurrent jurisdiction, and that's good enough for me. All that said, right now I am in the process of commencing a death action and having to get limited letters of administration issued. Surprisingly, the standard formbooks, and even the more specialized treatises don't really tell you how to go about this in the context that I am working in-- if you want to petition for limited letters you have to go to the Surrogate's Court Procedure Act (the SCPA, which always makes me think of Superboy's dog Krypto) and work from there. Fortunately, the clerks in the county where I am doing this are incredibly helpful, which has smoothed my path considerably.

Happy Bloomsday!

Looks like North Korea is pretty good-- but Brazil is still Brazil. Ivory Coast and Portugal have their work cut out for them-- I could see Chollima (apparently a sort of Korean Pegasus) being the other team in the group that gets through. (And by the way, I love this handy list of team nicknames. New Zealand really are the All-Whites! That's hilarious!)

Five "sacred cows in need of a good bricking."

"But what – I suggested to guardian.co.uk/music editor Tim Jonze – if we turned the cliche on its head and made it about genuinely wank bands that everybody pretends to like, much in the same way that everybody pretends to like Guinness even though they really think it tastes horrid and would much rather be drinking lager with Ribena in it. We could, I proposed, finally expose Nine Inch Nails, Sonic Youth, Teenage Fanclub, Belle and Sebastian, Tim Buckley, Big Star, Wilco and My Morning Jacket as the emperor's new faeces-streaked underpants that they actually are.

I received a curt response: "Guinness is the best drink ever," wrote Jonze, "just like Teenage Fanclub are totally amazing."

There's some primo takedown here, even if I don't agree with 75%-80% percent of it.

The way it figures, the second place team in Group C (Slovenia, England, USA and Algeria) will play the winner of Group D (Germany, the Socceroos, Ghana and Serbia). Slovenia has a win, and so presently leads Group C, but the commentators don't expect that will hold up, so it'll come down to goals scored when it's time to decide who gets Germany in the second round.

Back in March there was a great deal of sportswriter hand-wringing over the prospect of expanding the field of the NCAA hoops tournament. The 64 (or 65) team bracket is indeed a lovely thing, but the World Cup format is tough to beat for pure sports enjoyment. You get the pleasure of watching your team play several times; you get to stress about how upcoming matches may play out-- and then they ratchet it up in the knock-out rounds. It is brilliant. The early matches so far seem to be playing out true to form-- the Socceroos getting blown out and the Germans running up the score; the crafty Dutch over the cheery Danes-- but there are sure to be some stunners, and I can't wait until Group G (Brazil, Ivory Coast, North Korea and Portugal) start playing.

UPDATE: One of the other things I like about World Cup is that it allows you to support several teams (and to have several villains too). So, for example, naturally I'm with the US all the way, however far that is, but I'm also hoping that this will be Spain's year, and because this is the first time the tournament is being played in Africa I want to see Cameroon do well. Japan just handed the Indomitable Lions a tough loss, and that could shake things up in Group E (Cameroon, Japan, Netherlands and Denmark.)

Having a beer at the top of a hill in Pittsburgh a couple of years ago the bartender made a claim to the effect that the Iron City's population had more college graduates (or maybe it was advanced degrees?) per capita than other place in the US. Seemed odd at the time, and to be honest the exact wording of the claim, which might be significant, now escapes me. In any event, no. Top 20, though. Buffalo is 22, which seems respectable. (Via BoingBoing.)

I didn't know that "soccer" comes from the "soc" in "association football", the original name for the game. So, in a related question, what's the difference between Rugby League and Rugby Union?

I love courthouses. They are, for me, civic structures that symbolize our democratic right of self-determination and governmental participation. As such, it seems to me, they should be as open and as assessable to the public as possible. Sadly, they are not. If you want to see the fabulous rotunda at 60 Centre Street, or the extravagant interior of the New York County Surrogate's Court-- or the grim confines of the Buffalo City Court building, or any other state court building you have to pass through a metal detector or have a $25 dollar card that proves you are a lawyer. Time was a person could go into a courthouse and just watch the proceedings without being hassled, but that ship has sailed.

Federal Court is even worse. Although oral arguments before the Supreme Court are recorded and available, they are not broadcast live, and the proceedings are not televised or photographed. In fact, when you go into a federal courthouse they take away your telephone, just to be sure that you are in the properly reverential 19th Century frame of mind. This can work some serious inconvenience. If you need to reach your client, for example, you can try to find a payphone, or ask the judge if you can use his phone, or, I suppose, attempt mental telepathy. In an exciting development the Chief Judge of the Federal District Court for the Western District of New York has announced that Personal Electronic Devices will now be permitted in the courthouse-- if you are a lawyer, and if you have a card that says you've read the rules. The rules are here; the application for the card is here. In a nutshell: no photographs or recordings; no sharing your phone with any non-lawyers; no using the phone except in the lobby unless the judge says you may; no phones anytime near Judge Arcara; and if you get caught breaking the rules you pay $100 bucks and lose your phone privileges, presumably forever.

I'm sincere when I say that I applaud this development. It is actually very progressive of Judge Skretny to do this, and I hope that the Chief Judges of the other federal district courts where I am admitted follow suit. Of course the whole thing is done with the usual federal court pomp and circumstance, but that's just how they roll: it's like a High Mass when they order lunch there. I guess I'd just like my governmental institutions to be more open more generally, and this development reminds me that they are not.

Another Selection from our Collection of Terrifying Nixon-era Children's Books: My Dad Sells Insurance. Re-captioned by Sweet Juniper!

Looks like LCA's SATs will get her where she wants to be. Congratulations!

Songs of the Summer, 1940-2010. Some great stuff here, obviously, but not a lot of overlap with what my own list would look like. The defining criteria for a Personal Hit Single of the Summer is whether, when it came on the car radio you either turned it up (if you were riding shotgun) or yelled, "Turn that up!" (if you were driving, or in the back). It goes without saying that you'd be in the car with someone else, probably on the way to the beach. So, for me, 1979: Hot Stuff by Donna Summer, and maybe 2008: I Kissed A Girl by Katy Perry qualify. (My actual 2008 was "Sequestered in Memphis") 1965: Satisfaction by The Rolling Stones doesn't work because there is no way I'd have been in a car with anyone who'd have turned it up when I was 8. 1970: American Woman by The Guess Who? Maybe. It is a song I associate with 8th Grade, and summer camp. We all thought the grunt in the beginning was hilarious.

At Lawyers, Guns & Money Robert Farley offers a useful discussion of patron and client states, and how the relationship between China and North Korea resembles the relationship between the US and Israel.

To the Avett Brothers at ArtPark last night. They were opening for Les Claypool, so we got a truncated set, and the humidity seemed to be causing them problems too, but it was still worth the trip to Lewiston. We learned about the Avetts from EGA, who became a fan when her beau introduced her to their music; I get the sense that they are more or less his They Might Be Giants. In any event we've been listening to them since before Rick Ruben came on board and added drums, and feel as though we have the right to be a little proprietary. What are they like, you ask? Maybe a little like if James and Livingston Taylor had started out as a brother act, with more romantic yearning and a little less existential angst, a kind of Blue Ridge alt-country. Their instrumentation gives a clue-- in addition to guitar, bass and banjo (and sometimes drums) they have a full-time cellist. Their vocals have that high lonesome quality, and their lyrics have a knack for catching me by surprise:

"I wanna have pride like my mother has,
And not like the kind in the bible that turns you bad.
And I wanna have friends that I can trust,
that love me for the man I’ve become and not the man that I was."

One is tall and thin with a beard, and one is tall and thin with long hair like Jesus. Like James Taylor they can rock out a bit-- perhaps they rock out a little better, although that's a pretty low bar. ArtPark was in some ways a very good venue for them. I got the sense that a significant part of the crowd was there to see them rather than Claypool. They knew the songs, they danced in the aisles, they were seriously into it. (Jeff Miers says they played "I and Love and You". They did not, which suggests that perhaps Jeff was working from a setlist rather from notes. Perhaps he acquired this reviewing methodology from Janice Okun.

I couldn't put my hands on my KRAC singlet the night before the race, so I went with my Parramatta jersey-- my brother's colors. I figured it would add a bit of international flair. Wouldn't you know it, I wasn't to Porter Avenue before someone ran up beside me and said, "Parramatta? That's me home town!"

I got an 85.