Super Lawyers
William C. Altreuter

Thursday, January 31, 2013

So much great jazz out there, but how can anyone hope to keep up when on top of everything else great Miles Davis sets are still being released?

You really have to respect the creativity of crappy weather.

Wednesday, January 30, 2013

Pretty much every day following the Newtown shootings I wrote to my Congressman, Brian Higgins on a daily basis, urging him to support gun control legislation. When I lived in Geneseo my Congressman was Barber Conable, and I don't know where he was on this issue-- since he represented a rural district I think my guess is probably accurate. Other than Conable (who was in nearly every other way a first-rate congressman) I have never been represented in Congress by anyone worse on this issue than Higgins, who's district is urban, and has had no excuse for being wrong. Now he is coming along:
Dear Mr. Altreuter: Thank you for contacting me to express your thoughts regarding gun control. I appreciate hearing from you. Less than two months ago the Nation was witness to a heartbreaking tragedy in Newtown, Connecticut. Our Western New York community and those throughout the country grieved and prayed for the lives of six adults and twenty innocent school children. This tragedy remains beyond comprehension. Mass shootings force us all to reflect and work together for safer communities allowing us to protect our children and loved ones. As the 113th Congress begins its work we must begin a dialogue and move forward on policies to protect our children and communities from the devastation of gun violence. I recognize there are a lot of people who have varied opinions and feelings on this issue. I believe in the second amendment right allowing law abiding individuals to purchase, possess, and use firearms for legitimate purposes. Hunters must be free to hunt. Law abiding adults should be free to own guns and protect their homes. This country has a strong tradition of gun ownership that has been handed down from generations – these rights must be upheld. However, I do not believe this is debate about eroding our second amendment rights. The founding fathers 200 years ago could never had anticipated the kind of hell wrought at Newtown. If they could speak to us today they’d speak collectively and clearly and say we need to do something as a nation. The politics needs to be set aside. I am sure we can all agree that irresponsible, law-breaking, or a mentally ill few should not be able to easily attain a weapon of war. I recognize that there is no perfect solution – no single law, or set of laws – to prevent all gun violence, but there are pragmatic steps we can take to significantly reduce the dangers of gun violence. If there exists anything we can do to prevent further heinous mass shootings like Newtown, we as a nation have a deep obligation to try. I support a ban on military style assault weapons and a reduction in high capacity magazines. I have co-sponsored H.R. 138, the High Capacity Ammunition Feeding Device Act. The students killed at Sandy Hook Elementary School, all aged 5-7, each had between three to eleven bullets in them despite there only being one shooter; this legislation simply makes sense. Hunters do not use assault weapons with 30 round magazines. These devices are used to kill as many people as possible in the shortest amount of time and we owe it to innocent Americans to keep them out of the hands of dangerous people. While the gun issue is in the forefront, the problem of adequate services for the seriously mentally ill must also be addressed. Access to mental health services and basic health care are limited. The U.S. Department of Health and Human Services must make mental health services a higher priority than it has been. More research and education on mental health issues are needed, and states urgently need assistance in assessing and providing treatment for the mentally ill. Thank you again for contacting me. Please feel free to do so with any other issues of concern to you in the future. I invite you to visit my website,, where you can share your thoughts on other issues, subscribe to my e-newsletter, and learn more about the priorities I am working on in Congress on behalf of Western New York. Sincerely, Congressman Brian Higgins
I can't take credit for this-- if he thought my way he'd be in favor of quite a bit more reform. Still, the fact that a guy like Higgins (who is mostly okay on most other stuff) can come this far is a very good development. If there is going to be change then the drumbeat has to keep up. If you read Outside Counsel and you don't live in New York State, you know who you need to write to.

Tuesday, January 29, 2013

So, the Boy Scouts are thinking about ending the organization's policy of discriminating against gay kids. Good, if true. It would be nice if this were happening because it is the right thing to do, but...
"About 50 local United Way groups and several corporations and charities have concluded that the ban violates their
non-discrimination requirements and have ceased providing financial aid to the Boy Scouts. An official of The Human Rights Campaign, an advocate for gay rights, said HRC planned to downgrade its non-discrimination ratings for corporations that continue to give the BSA financial support. "It’s an extremely complex issue," said one Boy Scouts of America official, who explained that other organizations have threatened to withdraw their financial support if the BSA drops the ban."
. Doesn't look that complex to me. And you know what? I don't care about motive so much. Do the right thing and motive sorts itself out.

Monday, January 28, 2013

To Rudresh Mahanthappa at Bruce Eaton's Hunt Real Estate Art of Jazz series at the Albright-Knox. Mr. Mahanthappa was supported by David Fiuczynski(g), Francois Moutin (b) and Dan Weiss (d), and was playing material from his Gamak project.
We'd seen Mahanthappa last time through with The Vijay Iyer Quartet, and knew to expect some sort of jazz-Indian fusion, but what we got this time was quite different from what Iyer played. Everyone my age probably went through a brief Indian music phase, but I'd be lying if I said that I am at all knowledgeable about it. Luckily the pre-show was sitarist Naryan Padmanabha , who ran some of it down. This provided a useful foundation for understanding some of what was happening structurally when the headliners took the stage. When I think of Indian music what my minds' ear hears is a sort of drone, but what Padmanabha talked about was the rhythmic element, and it was this which opened the door to what the quartet was doing. To my way of thinking this was more fusion than Indian-- Fiuczynski, playing a double-necked guitar, sometimes sounded like John McLaughlin, sometimes like Jeff Beck, and-- when he was working on the fretless neck, sometimes sounded a little like Jan Hammer. What made it all work was the way the band meshed. It was like a zippy sportscar-- when more power was called for it was right there. Mahanthappa is no secret-- he is right in front of the cutting edge right now and if he is playing near you and you care at all about this music you will know about it. See him.

Tuesday, January 22, 2013

Here's the building where John Cale  and Tony Conrad shared an  apartment in 1964. $25 bucks a month. As Garland Jefferys wrote: "Once I lived on Ludlow Street/1964/Then I was so innocent/Now I know the score."

Friday, January 18, 2013

As regular readers know, Fridays are Law Days at Outside Counsel (sometimes). Today, a couple of notable decisions, some new, some not so new, that came to my attention this week.

First, an nearly coherent discussion of the doctrine of Assumption of Risk from the Appellate Division, Second Department. (I know. I was surprised too.) In Weinberger v. Solomon the court reversed a judgment entered upon a jury verdict dismissing the plaintiff's complaint and set aside the verdict, ordering a new trial. That's a big deal, folks-- Appellate Divisions don't often do that. The 14 year old plaintiff was injured when pitching JV batting practice from in front of the mound, without an L-screen, under the instruction and supervision of her coach. (Actually, the L-screen fell down, the plaintiff asked if she should still pitch, and the coach said, "Are you okay with still pitching?" Of course the very next pitch was hit back at the plaintiff, who caught it right in the mush. The jury returned a verdict finding the school not at fault in the happening of the accident on the ground that the plaintiff voluntarily assumed the risk of injury involved in the batting practice. Not so fast, says the Second Department:
Here, the Supreme Court improperly submitted to the jury the question of whether to apply the doctrine of primary assumption of risk. Under the circumstances of this case, as a matter of law, the doctrine of primary assumption of risk is not applicable and does not operate to bar the plaintiff's recovery. S., a high school freshman with limited pitching experience as a member of the School's team, cannot be said to have assumed the risk of being hit in the face by a line drive while pitching behind an L-screen, which, due to a defect, was not freestanding and had fallen down prior to the pitch that led to her injuries. In addition, it cannot be said that S. assumed that risk, when she was specifically instructed by her coach to pitch, without the benefit of the L-screen, closer to home plate than is the standard distance for pitching in the sport of softball. The evidence demonstrated that the School's athletic director required L-screens to be used during softball practice when the pitcher was pitching at a distance of anywhere from 30 to 37 feet from home plate. According to the School's athletic director, Pisano informed him that S. was pitching at a distance of approximately 34 feet from home plate.
The faulty equipment provided by the School and the decreased distance between S. and the batter, from which she was pitching at the direction of Pisano without the benefit of the L-screen, did not represent risks that were inherent in the sport of softball and, instead, enhanced the risk of being struck by a line drive.
Before we get too excited about Second Department jurisprudence, consider Stern v. Amboy Bus. (Does Ted Nugent drive the Amboy Bus? I hope so.) In Stern the Second Department affirmed Supreme Court's denial of plaintiff's motion for summary judgment on the issue of liability because the evidence submitted in support of the motion did not establish that the plaintiff driver was free from comparative fault, and that the defendant driver's alleged violation of Vehicle and Traffic Law § 1142(a) was the sole proximate cause of the accident. This impresses Outside Counsel as incorrect reasoning. The plaintiff's comparative fault is an affirmative defense, and it should therefore be the defendant's burden to establish that the plaintiff's negligence caused or contributed to the plaintiff's injuries. It is not the plaintiff's burden to disprove it.

Finally, an amusing coverage case. Outside Counsel seldom dabbles in coverage, but it cannot be gainsaid that in that realm are to be found facts that are far more amusing than in plain old, straight up tort cases. In Woo v. Fireman's Fund, Dr. Woo, a dentist (and, I presume a different Dr. Woo than the guy in the Steely Dan Song), sought partial summary judgment against his professional liability carrier which had denied coverage after he was sued by a patient. Woo, who seems to me to have had a sense of humor like that of most dentists, was replacing two of the patient's teeth with implants. We'll let the Supreme Court of the State of Washington pick it up from there:
The procedure required Woo to install temporary partial bridges called "flippers" as spacers until permanent implants could be installed. When he ordered the flippers for [the] procedure, Woo also ordered a second set of flippers shaped like boar tusks to play a practical joke.... While [the plaintiff] was under anesthesia, Woo and his staff removed her oxygen mask, inserted the boar tusk flippers in her mouth and took photographs of her, some with her eyes pried open. After taking the photographs, Woo completed the planned procedure and inserted the normal flippers.
I know, right? What kind of square wouldn't find that hilarious? The rest of the decision isn't nearly as funny, but if you care about coverage you can look it up.

Wednesday, January 16, 2013

Good profile of one of the Patron Saints of Outside Counsel, Greil Marcus. In terms of temperament I am probably more of a Christgau guy-- the Dean has a knack for pithiness that Marcus seldom employes. (That said, his review of "Self-Portrait" may be the most quoted piece of rock crit in history.) Marcus is more West Coast, I think, although it is hard to pin down what about him seems that way. Christgau teaches at NYU, Marcus teaches at Berkeley. I can picture Marcus at NYU, but never Christgau at Berkeley. Good advice:
When teaching a seminar, and there’s a point that rises out of the discussion that you think absolutely has to be made, wait.  In five minutes someone in the class will say what, if you, the teacher, had said it, would have killed the discussion—but coming from a student, it will push the discussion forward, into richer territory than your own sterile interruption could ever have found.

Tuesday, January 15, 2013

Great Dylan interview, from, of all places, Rolling Stone.
A lot of people would like to sing like Bing Crosby, but very few could match his phrasing or depth of tone. He's influenced every real singer whether they know it or not. I used to hear Bing Crosby as a kid and not really pay attention to him. But he got inside me nevertheless. Him and Nat King Cole were my father's favorite singers, and those records played in our house.

Monday, January 14, 2013

Over the weekend my Facebook feed briefly lit up with the news that a retired teacher from my high school had been arrested and charged with possession of child pornography. This announcement was met with a great deal of schadenfreude by some of my classmates. We will leave the guy's name out of it for the purposes of this discussion-- it wouldn't take much Googling if you are really curious, but the poor son of a bitch has already got enough trouble without me adding to it. I was never in a class with him, but he was the soccer coach, and had a reputation as the sort of strict disciplinarian that would be bound to make him unpopular with a significant number of students.

I was taken aback at the extent to which people seemed to harbor a grudge against the man. Some afternoon detentions or being yelled at 40 years ago really seared deeper than I'd have guessed. As I mulled it over, I thought a bit about the culture of the school, and how it marked us.

Looking back at it what strikes me is that we were right smack in the middle of the culture wars. The school itself was brand new-- its first graduating class was in 1970, five years before us-- a year after we entered. With the exception of some of the nuns all of the faculty were young, and even the older nuns were mostly younger than I am right now. The man in question, retired now, is nine years older than I am, and when you think about it, that's not a big age gap between a teacher and his students. What is big is the gap between our times and the times he was raised and educated in. He'd have graduated from high school in 1966, and from college in 1970. Chances are that he was one of the earliest hires at my school. Back then (and presently) Catholic school teachers didn't make as much as their public school counterparts, but if that was a concern for him his subsequent career suggests otherwise- he retired from SJB. I strongly suspect that he was Catholic educated his entire life, and although the mental picture we have of college from 1966 to 1970 has a Jimi Hendrix soundtrack, odds are that he was an athlete at a Catholic college who wore a tie to class.

On the other hand, we, the Class of '75, Catholic school kids though we were, were coming of age right in the heart of the 60's. You'll hear a lot of people my age complain about how we missed it, but I don't think that's really true. Sixties culture had become mainstream for us. We were like the middle siblings who get to take advantage of the loosening restrictions our older sibs pioneered, with one difference: the faculty and administration we were largely dealing with were less accepting of our blend of adolescent rebellion and weak as milk counter-culturalism than were our exhausted parents. For them we really were the barbarians at the gate, inadequately barbered and uncouth and I think they had a hard time accepting that the kind of discipline that they'd received at our age wouldn't be as effective with us. Of course, not all of the teachers were like that, by any means-- and not even, as you might think, all of the nuns. Some of all of them were wise enough to understand that most of what they were seeing in us was simply adolescent acting out. The ones that got it I still remember fondly. The ones that didn't? Well, as I think about it, there weren't as many of them as I must have thought. I probably thought the whole set-up was stricter than it may have been because it was in my nature to push back against that sort of thing. It remains so today-- probably that's at the base of why I do what I do. Even so, I respect structure, and although the structure of my high school chaffed my impulse was never anarchic.

Ironically, judging from their Facebook pages, many of my classmates who are now reveling in the fall of a guy who spent 40 years teaching high school turned out to be conservative Republicans. It looks to me like the culture of that place had a bigger impact on them than they think, and I think that's too bad. When your idea of injustice is an afternoon in detention for not wearing a tie you are not likely to feel too bad about an arrest for allegedly possessing child pornography. It's funny how values get twisted around like that.

Friday, January 11, 2013

I just want to get it on the record: I like Broncos over Ravens, Niners over Packers, Seahawks over Falcons, and Texans over Pats. 

I just like the way she says it.

Wanna know why Private Eyes is Tommy Bolin's best work? No Jan Hammer, that's why.

Thursday, January 10, 2013

Mike was less impressed.
“Why couldn’t you have insulted someone cool?” he asked me. “Like Iggy Pop or Keith Richards?

Wednesday, January 09, 2013

Tim Raines screwed again. Everyone covering this story is burying the lede: we knew Bonds and Clemens weren't going in this time; the point is that a bunch of guys who were indisputably qualified got screwed because of a controversy that they had no part in. Good gawdamighty, baseball writers are all still as stupid as Dick Young was. (Funny to see that Young, whose column was incongruously called "Young Ideas" was only 69 when he died. I'd have guessed he'd been 97 his whole life.)

Monday, January 07, 2013

The joke about the Bills hiring Doug Marone is that their search encompassed a 150 mile radius. Fair enough, and I'll be the first concede that Marone is an underwhelming choice. That said, I'm not so sure that he's a bad choice, or that there is any coach that would make a difference. Watching Mike Shanahan's Redskins yesterday I thought about what a great football genius he was-- when he was coaching John Elway. Nowadays he's putting his franchise player, a guy who could be the foundation of the franchise for the next ten years, out on the field injured. I understand that he wants to win now, but if you have the most famous orthopedist in the world on the field to find out if your franchise player is injured you already know the answer. Football coaches are geniuses when they win, full stop. Here's the job description: evaluate talent, and put the best talent on the field; design and implement game plans that enables that talent to play up to its potential; make adjustments as necessary. In order to do this a head coach relies on assistants, so managing the staff is a component. I suppose there is a sense in which player motivation is important, but I'm with Marv Levy on that- the players are professionals and should be able to motivate themselves. If they can't, then you probably have the wrong players. It isn't easy to evaluate coaches. The guys who have been winning lately aren't available, so you have to look to their staff. A coordinator may be great at game planning and design, and is probably good at player evaluation and instruction as well, but managing the entire staff is another story. Gregg Williams, for example, was terrible at this. Mike Mularkey, who followed Williams, wasn't able to figure out who to put on the field. Dick Jauron was over his head entirely. Chan Gailey, it seems to me, was poor at game management and game planning in general. I'd say there is enough talent on this team to win-- I'd rather have the Bills situation than the Jets, for example, or the Cowboys. Getting it on track is the issue, and that isn't something that typically happens in the first season of a new coach's tenure.

I meant to post about this earlier, and nearly forgot. This time of year is good for pantry cleansing. We'd bought a couple of frozen lobster tails a few months back, and a few months before that we'd had lobster and I'd reserved the shells thinking that I'd make stock. LCA was going back to school, so we decided that we'd send her off with a fancy meal, so during the day she made stock using this recipe. It was amazing-- a rich, complex broth. When I got home, I made Lobster risotto using this recipe. Because people know I like to cook they often give me nice things to cook with, so I've had a bottle of truffle oil around, but I never knew what to do with it. Now I know. Do this with it. The risotto was terrific, and the truffle aroma blended perfectly with the lobster.

Friday, January 04, 2013

Tim Scott is "The first African-American from the South to serve in the Senate since Reconstruction." Even if you include the Reconstruction-era Senators it isn't a long list:

Hiram Revels (R-Miss.) 1870-71
Blanche Bruce (R-Miss.) 1875-1881
Edward Brooke (R-Mass.) 1967-1979
Carol Mosely Braun (D-Ill.) 1993-1999
Barack Obama (D-Ill.) 2005-2008
Roland Burris (D-Ill.) 2009-2010

 Eighty-six years between Bruce and Brooke. That's pretty disgraceful. Is the 24 year
stretch between Brooke and Braun worse? I'd like to think that 1979 to 1993 was a more racially enlightened period. I think it is notable that there are only four states represented on the list, and it is likewise interesting that the Republican Party has produced more black Senators than the Democrats. Of course, that's a bit of a historical trick. Reconstruction Republicans were a different breed of cat than Edward Brooke, a decent guy and the first African American popularly elected to the Senate. Consider the demographics as of 2000 depicted in the accompanying map. Now, as long as we are thinking about demographics, consider that 20 of the 100 Senators are women this year.In their honor, perhaps we should drop the "since Reconstruction" locution in order to emphasize exactly how disproportionate electoral representation in the US has always been. 

Thursday, January 03, 2013

Since we consume a great deal of Maple syrup at Big Pink (seriously, it's like we have a family of bears living with us) I was naturally interested when I learned that someone had hijacked Quebec's Strategic Maple syrup reserve. First of all, what a concept. It's sort of like the joke about how the Middle East got oil and the Irish got potatoes. (The Irish picked first.) The wise Canadians knew that Maple syrup is great to have a lot of, so they stockpile it. Wouldn't you like to go to there? Second, how was it done? The story is here.

Wednesday, January 02, 2013

I can't really say that it seemed like a good idea at the time, because who am I kidding, but we have acquired two kittens, Jinx and 13. They are hilarious. I've never had two kittens at once- it really is double the fun, because they do all of the things that kittens do, and they do it with each other. I'd pestered A. about a new cat for a while: the demise of Lancaster really left a void. In the run-up to Christmas CLA and I found ourselves in the mall, and when in the mall with CLA a visit to the SPCA is compulsory. The two black kittens were the best cats there, but they weren't declawed, and they were male, as well as being two kittens. A subsequent outing brought us to the main shelter of the SCPA, where we visited with the goats, and the Big Pig, and the sad dogs. There were kittens there, too, but none of them spoke to us. The two black kittens had been charismatic. Meanwhile, CLA kept working on A, who, in a surprise move, acquiesced. The agency had an interview requirement which was agony-- it is easier to get a handgun than a kitten. What religion are we? What religion will we raise the kittens in? Do we bathe? Beatles or Stones? It was an ordeal, but in the end we were able to go back to the SCPA with a pillow case and tell them, "Fill'er up." (Actually, just as hospitals will not let you take your baby home without a car seat, the pound requires a plastic carrier. A cardboard box, like Henry Huggins used for Ribsy, will not cut it.)
We'd thought that the Orange Cat would take to the kittens pretty readily, but that has not proven to be the case. Ordinarily the mildest of beasts, walking from room to room purring, she has decided to sulk, except when the kittens are let out from the temporally re-purposed dining room. When that happens she makes a terrifying growling noise, and chases them. Although they seem to want to be a part of the Orange Cat posse the kittens are not about to mix it up with her when she is in that frame of mind, so we have a way to go there. And now it's on record: I have lost my mind and turned this into a blog about my cats. Heaven help me.

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