Outside Counsel

Interesting discussion about discovery of social media at the Western New York Trial Lawyers Association today. At this point Googling and Facebook stalking parties is pretty routine, and I think the barn door is closing on defense counsel's ability to find worthwhile material on social media sites-- but it isn't closed yet. One issue out there is the timing of disclosure. Ordinarily party statements are to be disclosed upon demand in New York practice, and this is a continuing obligation. (In federal practice you are expected to give it up pursuant to Rule 26-- no need to wait for somebody to ask.) One of the presenters took the position that if one is merely viewing the material on line, rather than printing a hard copy,  that it need not be disclosed. I'm inclined to disagree. The Court of Appeals seems to be trending in the direction of saying that the presence of material in a computer cache is proof of viewing, and actual physical possession may not be necessary. See, People v James D. Kent. I would put it to you that the smart thing to do if you encounter something great about a party on Facebook would be to disclose it, rather than risk being able to use that information.

I just want to say, right now, that these Mets are making me glad.

And just like that, Dewey LeBoeuf is over. Pigs get fat, hogs get slaughtered. The shoemaker's children go barefoot. Whenever I see a firm like that go bust I marvel-- it inevitably happens because the decision makers make decisions that they would never, ever recommend to their clients.

Some years back we were a minor beneficiary of a similar meltdown, inheriting a batch of files from a firm whose partners didn't know how to share. I went with the client to retrieve the files in person, and the poor son of a bitch that had stayed on deck to manage the wind-down was a lawyer with whom I'd had some dealings in the past. He had been one of the decent ones in a office that was well-known for its hard-nosed swagger, and he was miserable, surrounded by banker's boxes and broken office furniture. Everyone else had left the plantation, and he was stuck, being paid out of the bankruptcy estate, doomed to be the last one out of the gate in his search for a place to land. I'd never particularly liked him, and I actively hated the firm, but seeing the guy like this gave me no pleasure. Really all it did was remind me that our glamor profession is a very delicate ecosystem. Every day your chief assets put on their hats and go home, and if they go into work the next morning at a different place, well, that's what happens. If enough of them do that then the secretaries and the mailroom guys, and the overnight staff and the paralegals -- and the associates-- are all out of work. The outfit that takes care of the plants, the cleaning contractor, and the coffee service company lose a valuable account. 

Happy Birthday, Bob.

Sometimes it's too easy, you know? Somebody asked Mittens what his favorite novel is, and he said L. Ron Hubbard's "Battlefield Earth". Then, through a spokesperson he backtracked and said his favorite book is the Bible. Like there's a difference.

Why didn't he just say "Atlas Shrugged" and be done with it?

I hate bad social science, and I hate bad political science most of all. Here's a fun example, from MSNBC: Decision 2012 and the myth of the 'Catholic vote':

The most misunderstood voting bloc in the 2012 election is the Catholic vote.
Why?
Because there isn’t one.
The religious assemblage, which has evolved over the past century from a strong Democratic constituency into a national election bellwether, is no longer discernible from most other voter groups. As the community has become less homogenous and more assimilated into mainstream culture, so has its voting habits – sending many politicians on a fool’s errand in pursuit of the “Catholic vote.”

Well now, what exactly is that supposed to mean, and what evidence does the article point to? You will search hard for the answers to those questions, without satisfaction. There are quotes from people who say things like, “I think the Catholic vote is very fractured right now,” but these people turn out to be a Jesuit shaman, or a professor at Catholic University, or the conservative editor of an echo chamber called "First Things", and the evidence that they point to is suspect. For example, the piece notes that Catholics (a self-defined group by the way) favored Mittens over their co-coreligionists Newt and The Man Who Was Afraid to Google in the Florida, Michigan and Ohio primaries. Leaving aside the obvious logical fallacy-- (Catholics voted as a block for a Mormon guy therefore Catholics do not vote as a block) -- what this suggests is Catholics who vote in Republican primaries may not be motivated by a candidate's religion. That actually makes a certain amount of sense to me-- most of the Catholics I know are less guided by the institutional church than they are by a set of self-selected principles. I'm not sure how they operate with that level of cognitive dissonance -- it's a mystery, as they used to tell me-- but they do, and they have for a long time, at least in this country.

Past that, there is the question of what a swing voter actually is. I have a feeling that a swing voter is like a clutch hitter-- you can catch a glimpse of one, but none have been actually photographed or captured in the wild. Were there really Catholics who voted for Gore and then four years later voted for Bush? Or was it, as I suspect, that a fair number of Catholics bought into the foolishness that there was little difference between Bush and Gore and so stayed home? To answer that question you would need data, and data is antithetical to the editors of journals like "First Things". Cats like that prefer explanations that are based in faith, because then they can make stuff up.

UPDATE: I think what I am trying to say here is that there is a meaningful difference between the institutional Church and the people who identify as Catholics. This goes beyond access to insurance subsidized contraception --members of the institutional church are probably the 2% that don't use it, because they are not supposed to be having sex at all-- and certainly colors voting behavior. If you want to poll Catholics, go for it. If you want to know what motivates Catholics politically, the least scientific way to go about it would be to ask a bishop. I can count on the fingers of my hand the number of times I've even seen a bishop off a chessboard. They have essentially no connection to the overwhelming majority of the Catholic population, and when a bishop's letter is read to a congregation, in my experience, there is an audible groan.

I didn't know that the Gibb brothers were Manx.They emigrated to Australia (from Manchester) in 1958.

Gloria Gaynor and the Average White Band should be careful crossing streets for the next month or so.

Donna Summer was the artist that convinced me to be honest with myself and admit that I liked disco. Her music was irresistible, and 63 is too young.

To Charm City over the weekend to establish CLA in her new base of operations. Dropping a daughter off at her dorm and dropping her off at her new apartment are, it now seems to me, two rather distinct emotional experiences. This is it, the big step, the real beginning of the rest of the adventure for her. I count us lucky that we have close friends in Baltimore, so that she has a base.

The take-away from the Mittens was a prep school bully story shouldn't be that Mittens was a prep school bully; it should be that Mittens is an idiot.

Most people, I suspect, have successfully suppressed most of their high school memories. We are capable of recalling the slights, and some of the actual highlights, but the day-to-day is largely lost, and thank goodness. We all know that children can be cruel, but we forget that we ourselves were often the perpetrators of cruelty. Decent, responsible parents are capable of recalling this fact sufficiently well to endeavor to teach it out of our own children, and evolving standards of conduct mean that a lot of behavior that used to be routine schoolyard stuff is now recognized for what it actually was all along-- abusive bullying.

To be blunt about it, there were times when I was a kid when I was an absolute asshole, and I cringe when I think about those times. If I ever saw any of the people I was mean to I promise I would apologize. The sole solace I take from this self-knowledge is that I am really sorry now. I've represented children who were the victims of bullying, and maybe there is some karmic balancing there; I have raised daughters who are better people than I am-- true champions for the oppressed-- and that is balm for a guilty conscience as well.

Which brings me back to Romney. When the story about his Cranbrook days broke the smart thing to have done would have been to have taken the opportunity to say, "I am sorry. I feel bad about it, and I want everyone who is thinking of voting for me to know that I believe there is no place for cruelty or bullying in the American character. That's not who I am, and it is not who I believe we are as a nation."

Instead, the guy who strapped his dog to the top of his car laughed it off and made a non-apology. Dude, when there are stories about George W. Bush at prep school that show him off in a better light than you that's a problem.

So long, Maurice Sendak.

Princess Diana's childhood record collection is being auctioned as a charity fundraiser. Not surprisingly, it is a rather ho-hum list, heavy on the classical:
 Eagles - Greatest Hits
 John Denver - Rocky Mountain High
 Paul Simon - Still Crazy After All These Years
 Bob Dylan - Hard Rain
 Carmen
 Romeo and Juliet
 Brahms - Hungarian Dance
 Jean Sibelius - Finlandia
 Beethoven - Symphony No6
 Beethoven - Symphony No5
 Mozart - Symphony No40
 Mendelssohn - Overtures La Fille Mal Gardee Faure
Saint Saens Elgar - Enigma Variations
 Liszt - Piano Works"

 It's the Dylan side that is the oddity here. "Hard Rain" is just about the last Dylan record you'd expect to see if there is only one Dylan record on someone's shelf. It wasn't even available on CD until a couple of years ago, and just about everyone I know who rushed out to buy it when it was originally released hated it. It is still a good bet when you are buying used vinyl: there are a lot of copies out there that were played once and then shelved. Christgau gave it a B-. ("The only reason people are disgusted with this record is that they're sick of Dylan--which is understandable, but unfair to the record. The palookas who backed him on this tour sure ain't the Band, and the music and arrangements suffer accordingly--these guys are folkies whose idea of rock and roll is rock and roll clichés. But the material is excellent, and on a few occasions--I gravitate to "Oh Sister" and "Shelter From the Storm"--Dylan sings very well indeed.") I eventually came around to it-- "Hard Rain" is where Dylan started showing us that he would be re-working his material, and he hasn't really stopped since, so it is interesting for that alone. Still, I doubt that Diana Spencer was interested in it for that reason-- girls who are that deep into Dylanology would have a copy of "Highway 61 Revisited" or even "Desire" as well as "Hard Rain". Probably it was a Christmas present. It is certainly the hardest rocking thing on the list, and I'll bet she played it sometimes, just for that.

Slow Cooker duck confit. Just in time for Memorial Day!

In Nashville last week for the Spring meeting of the Academy of Hospitality Industry Attorneys. Naturally the educational component was outstanding, but good as it was I'd have to say that the highlight was attending the Grand Ole Opry Friday night. I will confess up front to being less knowledgeable about country music in general and the Opry in particular than maybe someone who takes an interest in American culture ought to be, but I've been working on this deficiency, and I feel like I'm making progress. Part of the problem for me amounts to Sturgeon's Law: Ninety percent of everything is crap. Always in the past when asked about country music I'd say something like, "Well, I don't really care for it, but I like Hank Williams." Gradually the list of artists I'd admit to enjoying listening to grew. I mean, who doesn't like Dolly Parton? Or Johnny Cash? Dwight Yoakum? Willie Nelson? Loretta Lynn? How can anybody deny Ronnie Milsap? Or Merle Haggard? Lyle Lovette-- hell, I've been listening to him for years. Pretty soon you realize-- or I realized-- that what I didn't care for was bad country music, and that there was a whole lot of amazing country music that I've always liked, and even more that I didn't know about that I ought to. Imagine if your sole expose to rock and roll was through a Classic Rock radio station. There'd be quite a bit there that would impress you as utter rubbish, with only an occasional jewel in the dungpile. Like many things, I suppose, it helps to have a knowledgeable guide, but it is also good to have an open mind and big ears. Oddly, in a way it may have been Julia Child who helped me overcome my reluctance to admitting that I like country music just fine. When asked about her guilty pleasures Julia said, "I don't have any guilt." So yeah, the Opry. It's a radio show, which I sort of knew, broadcast live on WSM-AM. The format is straight variety show-- done in half hour segments, with each half hour hosted by an artist who does an opening number and a closing number, then introduces one or two guests. There are commercial breaks, which are read live by a silver-throated fellow named Ed Tubbs. Mr. Tubbs looks like an auditor who just realized he left his Gelusil in the pocket of his other coat, but he sounds so sweet that listening to him it's all you can do to resist buying health insurance or running out to the Dollar General Store right then. It is sort of like Prairie Home Companion, if Prairie Home Companion wasn't for assholes.* I had to do a little digging to find the line-up for our show, which looked like this:

7:00: Mike Snider (host); Connie Smith; Darryl Worley
7:30: George Hamilton IV (host); Jesse McReynolds; Canaan Smith
 Intermission
 8:15: Bill Anderson (host); The Whites; Terri Clark
 8:45: Jim Ed Brown (host); Jean Shepard; The Grascals

 Like they say, they had both kinds of music, country and Western. Mr. Snyder attires himself as a colorful rustic in overalls, a Hawaiian shirt and a baseball cap. He fronts a traditional string band, and plays banjo, and was hilariously great. Ms. Smith was straight-up Nashville, to the extent that means anything-- I found her reminiscent of Patsy Cline. Darryl Worley was a bit more problematic for my tastes. He's a pretty boy county artist with a more or less country rock approach. I can live with that, but rhyming "have you forgotten" with "bin Laden" is where I draw the line. (There's a spectrum for this sort of thing, in my mind. If all I knew about Neil Young was "Ohio" I wouldn't like Neil Young either.) George Hamilton IV is old-school, wearing a tatersal trimmed waistcoat with a prominent IV embroidered on the breast. He was backed by his son, George V, and was genial and enthusiastic. He brought out Jesse McReynolds, late of Jim and Jessie. Mr. McReynolds wailed on mandolin jus' like you like to hear, and was followed by another pretty boy country rocker, Canaan Smith, said to be an up-and-comer. Bill Anderson ("Whispering Bill") was the host following the intermission, a guy whose radio show-- interviews with other country musicians-- I used to listen to. He closed with a number I'd heard in the past, "Golden Guitar", which is the sort of hoke I used to pretend I didn't like, but which I now acknowledge as irresistible, at least in small doses. Damned if he didn't wipe away a tear at the end of it. Bill featured The Whites (my pal Dave said, "From the looks of things that's pretty much everybody here,"), who performed, inter alia, "Keep On The Sunny Side" which they also performed on the "Oh Brother Where Art Thou" soundtrack. We also got Terri Clark, who says she is the only Canadian woman member of the Opry. She's from Alberta, and rocked along purty nice, although she forgot the words to one of her own songs. That's an easy sin to forgive in a woman who can carry off a black cowboy hat like that. Jim Ed Brown came out to host the last half hour, brought to you, friends, by the Cracker Barrel Restaurants and General Store. Jim Ed brought out Jean Shepard. Ms. Shepherd is "as you know", she said, presently suffering from tic douloureux, but it didn't hurt her singing any ("It Wasn't God Who Made Honky Tonk Angels") and it gave her a little bit of an Elvis sneer, which was actually sort of charming. The bluegrass component of this set was the Graskels, who I'd be glad to hear again as long as they promise not to sing the song about the childhood friend who came back from the army dead.

It was a terrific evening of music. I am here to tell you, these cats can all flat-out play-- the display of pure musicianship was jaw dropping. I'd go back again in a heartbeat. ________________________________________________________________________________________________________________________________ * I am experimenting with this joke. I tried "if Prairie Home Companion wasn't for hipsters," but it wasn't as funny. Either way, the joke is perhaps a shade more contemptuous of Prairie Home Companion than I probably actually am.

Here it is, Law Day again, and I forgot to send a card.