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William C. Altreuter
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Friday, August 30, 2013

Fridays are Law Days (sometimes) at Outside Counsel. Today we present CBA Properties, Inc vs. Global Airline Services, Inc. (pdf), a Third Department decision arising out of a commercial action in Supreme Court, Albany County. Some time shortly before trial Supreme Court directed the attorneys for the parties to appear for a conference with a corporate representative from each. When counsel appeared without their clients, the judge set a new date-- Christmas Eve. At the rescheduled conference plaintiff's counsel appeared with a corporate representative, and the defendant's attorney brought someone who'd been specifically hired to attend the court appearance-- not a corporate officer or employee. The judge deemed this unacceptable, struck the defendant's Answer, and directed that the matter proceed to inquest on damages rather than to trial. The Appellate Division reversed, and reinstated the Answer, stating that, "The applicable rule instead specifically authorizes the court only to deem the party's failure to comply 'a default under CPLR 3404', which results in a removal of the case from the trial calendar," pursuant to 22 NYCRR 202.26 [e].


I think that's the correct result, but it is a peculiar one, at least under these facts. Judges frequently engage in arm-twisting to settle cases approaching trial, and the pretrial conference with a representative with authority to settle the dispute is a favorite toy. This case, a commercial matter in which breach of contract and unjust enrichment was alleged, was apparently one in which the Supreme Court judge was particularly vexed-- judges hate working on Christmas Eve every bit as much as everyone else does. That said, the sort of arm-twisting that goes on at these sorts of pretrial conferences can and frequently does cross the line. I've skated pretty close to sanctions in these circumstances on more than one occasion, because I'm the one that talks to my client, not some judge. I don't want any judge compromising the veneer of neutrality when my client says that we we or will not do what the judge recommends, and in a lot of legal cultures the mere fact that a judge would engage in such conduct would be shocking. Then too, the defendant here is absolutely correct: the Business Corporation Law does indeed authorize it to appoint any representative it chooses to act on its behalf. It is kind of ballsy to be so high-hat to the judge who is about to preside over your trial, but we all have our appointed roles in life, and the judge's role is to preside over trials when the matter can't be resolved any other way.

All that said, the outcome here is an odd one to this extent: the plaintiff, who commenced its action in 2008, and came to court on Christmas Eve, has just spent eight months cooling its heels (when not briefing this appeal), and has just been told that the next time something like this happens the court's response will be to knock the case off the trial calendar. The remedy, in other words, is to delay the trial. That's kind of messed up. I do not expect that the situation will arise with much frequency, since one of the top three or four unwritten rules of trial practice is Don't Piss Off the Judge, but now we have a case that tells us what happens if we do, and what happens is nothing much.

Thursday, August 29, 2013

How great is Bill Watterson's Calvin and Hobbs? Pretty great, I'd say. And it went out on top, something seldom done. In 1990 Watterson gave a commencement address at Kenyon College.. Cartoonist Gavin Aung Than has now illustrated that speech in Watterson's style, and it is uplifting and beautiful.



Tuesday, August 27, 2013

Apparently Miley Cyrus was provocative during the Video Music Awards, and this has people in a lather. Ron Emkhe has a nice post about it on FB here, and several people have linked to this piece in The Onion. My first thought was that all the fuss was just Silly Season stuff: the news gets slow during the Dog Days of August, and people who have to say something need to say something at all times, so they look for stories about cats chasing dogs, or celebrities doing the stuff that celebrities do and write about that. Ron notes that this particular flap resembles the story (I was going to say "coverage") of Janet Jackson's Super Bowl wardrobe malfunction-- but that was actually an event with long-term legal consequences, and big fines, and serious implications for media in general. I don't think this is that-- I think it is much, much more significant. While people are fuming about an attractive young woman singing a catchy little song weapons inspectors have determined that Syria has uncorked the poison gas, and the President is experiencing increasing pressure to intervene there. (From whom? Hard to say. From John McCain, and his sidekick, Tweedle Graham are two that I know. I'm not sure who else thinks that sending in the bombers would be a swell idea.) Egypt is, as far as I can tell, in a state approaching collapse. Congress has roughly six weeks to stop doing what it has been doing for the past year and is on the verge of plunging the world economy into darkness... I mean, I don't want to be Chicken Little about this, but if Miley Cyrus' twerking is what has our attention, maybe we deserve what we get.

 Oh, America-- why are you so oblivious? Miley Cyrus is the answer to an easy question: What do you think about a pop singer being sexually provocative? Meh, not much. Hard questions, the kind that require serious thought, and actual evidence? Who wants to think about those? Plenty of right-thinking people seem to believe that some sort of intervention in Syria is called for; quite a few more, if we are to believe the polling data, believe that it is best to stay out. Looking past the polls to the arguments is where the challenge lies. Just because we can doesn't mean we ought to, and the place where people start thinking pretty much determines where they end up on the argument. For example, I hear people making comparisons to American intervention in WWII, which impress me as inapt: the Holocaust could have been largely averted if its victims had been given some place to go, but neither the US nor anyone else wanted to admit the refugees. This is not that: the people being gassed in Syria don't want out: they want to take over the country. That goal, however laudable, impresses me as an internal matter, however horrific the means. And, you know, it's not like we have so many examples of international intervention working out so well in circumstances like these. Keep in mind that with very few exceptions tactical bombing is a terrible tool for accomplishing most objectives. I suppose it worked in Libya-- early days yet-- and they say it worked in Kosevo, but those are the only two examples of accomplishing a foreign policy objective in that manner that I can think of. If the goal is to get Halliburton the contracts to re-build, that's one thing. If it is to end the suffering on the ground, and see a government more aligned with US and European interests installed I have my doubts. Bombing the hell out of a place is not a good friend maker.

Sunday, August 18, 2013

Lawyers like the late Jacques Verges are the lawyers who are heroes.

Saturday, August 17, 2013

We've represented victims of campus sexual assault in the past: it grieves and angers me that colleges and universities in the 21st century are still trying to euphemise rape culture under the rug.

Friday, August 16, 2013

Outside Counsel notes with sadness that Allen Lanier is now dead, dead, dead. We've made no secret of our affection for Blue Öyster Cult; we regret Lanier's untimely demise.

How many Todd Rundgren shows have I been too? Couple of dozen probably, before I said the hell with it. Last night he played the set I'd always wanted him to. I went thinking it would be ironic fun, and I left amazed at how good it was. In fact,  at first I couldn't believe it was actually as good as I was hearing. It was done completely straight, no smart-assery, and it sounded terrific. I was really surprised. The night before I went looking for my copy of Ra, the album that should have told me that I was being had, but I couldn't locate it so I played Utopia instead. (I got off the bus after Whoops, Wrong Planet.) "The Ikon" - wouldn't have been out of place on a Mahavishnu Orchestra album, although it would probably be one of the weaker cuts on a Mahavishnu side. At the time I thought it was the cat's ass, but it was always Todd the Philly soul crooner that I always liked best, and that was what was chiefly on display last night, along with a healthy sample of rockers from Something/Anything, and a fair amount that I was unfamiliar with, but which sounded great.

Wednesday, August 14, 2013

Cat Cracks Case. Kitty Kop Kuffs Killer.
The latest case involves a suspect in Britain who was convicted of manslaughter after prosecutors drew a genetic link between his pet cat, Tinker, and cat hairs found at the crime scene. Investigators took advantage of a database of DNA from 152 cats in Britain.
What I love about this story isn't the forensics, it's that the writer makes sure to give us the name of the cat-- and the name of the cat in an earlier, similar case out of Canada. (Snowball, if you can't be bothered to click.) See, that's journalism. If your mother says she loves you, check it out. If there is a cat involved, get its name.

Tuesday, August 13, 2013

Nixon is a mystery, isn't he? Watch this, and marvel. You think for a moment that his humanity peeks out, and then just like that he turns into Nixon again. Then he plays the song, and it is a sweet, sentimental little thing.... Very odd. The guy just couldn't get away from himself.

Monday, August 12, 2013

As much of The Day the Clown Cried as we're likely to see. Funny, watching this provides some insight as to why Jerry Lewis is taken seriously by serious film people-- and especially the French. The Cahiers du Cinéma crowd respected Lewis because he was an auteur, in complete control of his films, and you can see some of that in this clip. Granted, the subject matter is appalling, but is it really worse than Life is Beautiful? It is hard to think of how it could be.

Thursday, August 08, 2013

You can buy a piece of the Chelyabinsk Meteorite. I suppose if I thought it would give me super powers I would, but it doesn't seem likely that $29 bucks worth of space rock would do that. Also, how come there is so much Kryptonite on Earth?

I missed the column in which the Buffalo News' Tim Graham announced that he will no longer refer to the Washington DC NFL team by its racist nickname, but good on him.

Wednesday, August 07, 2013

Notes on Alex Rodriquez:

Rodriquez is the sole custodian of his talent, and he is being reviled for the choices he has made about how to use that talent. I don't imagine he could be held in lower regard, by just about anyone, but really what is he guilty of? It seems to me that he has been trying to take the maximum advantage of his already substantial abilities, and isn't that what we expect from athletes? Hell, isn't that what we expect from everyone? If Rodriquez had a burning interest in theoretical physics, wouldn't we want him to do everything and everything he possibly could to explore the dimensions of the universe? Would we criticize him for taking Adderal? If he were a gifted artist, wouldn't we expect him to be driven to create blazingly great works of sublime insight? Wouldn't we be more inclined to regard him harshly if he failed to take the full advantage of his gifts? It seems to me that the opprobrium presently being heaped on this guy, who, along with Barry Bonds, deserves to be numbered among the greatest baseball players in history, and who, along with Barry Bonds, is instead regarded as some sort of combination of Darth Vader, Josef Stalin and Lex Luthor, is largely a product of two things. The first is jealousy. We know that athletes are better at sport than we are, but we expect them to be modest about it, because we secretly believe that we are superior people than they are. There is, of course, very little evidence of this, but if you think about the best athlete you ever competed against (mine was a high school classmate who went on to modest collegiate success as a decathlete), the chances are that whoever that was had a sort of arrogant confidence in his or her
own ability that grated. For those of us who have not been brilliant athletes (which is, of course, by definition, 99% of us) the work and the insecurity that the truly great experience is something completely foreign. We know how hard we worked, only to fall short, and it chafes at us that others succeed where we have not. They are just gifted, we think, like the fox who couldn't reach the grapes. Well, maybe. But maybe what we aren't understanding is that the gift isn't merely preternatural skill. Maybe it is a capacity for hard work that we lack. Because that's the second part: for the most part people think that performance enhancing drugs work like a comic book super-serum. "Drink Me," the bottle says, and suddenly, instead of steel claws popping out of our knuckles we'd be able to dunk a basketball. Of course that's not how it works. PEDs make it possible for guys like Alex Rodriguez, who already worked harder than anybody else to become better than anybody else to work even harder than that. "You're already great," people say, but the capacity for hard work has always been the thing that relieves a great athlete's insecurities. Better than any of us, a great athlete knows that a day lost to an injury, or an ache, or "just not feeling it today, coach" is a day that is lost forever. It is not a day that is spent improving-- it is a day that is spent declining. And you don't get those days back.

See, also:
People who haven't been banned by baseball.
David Brooks is an idiot.


Tuesday, August 06, 2013

To Rockport Maine, for the Lobster Festival, where we volunteered for a day, A and I making Lobster Rolls (roughly 300 pounds of lobster) and CLA and LCA over at the big tent making shrimp salad and smoked mussel salad. (The mussel fishery in Maine is down this year-- these were PEI mussels.) It was an exhilarating experience, working the line like that, and an interesting way to interact with the locals-- the event is run by a community based not-for-profit and raises money for local stuff: equipment for the fire department, or the hospital. Rockland has a population of under 8,000, a pretty little place with as beautiful a harbor as I've seen anywhere. Travel is, for me, a kind of research: like David Byrne I am trying to find a city-- or at least imagine what it would be like to live in a particular place. Here's a place I wouldn't care to live: Maine. It is beautiful, that cannot be denied, but it seemed to me to be almost like a third-world country in terms of relative deprivation. It is a rich person's playground, a vacation spot, for three months or so, and then all the people from away go back to wherever it is that they came from, and everyone else resumes their everyday lives. For the lightly sunburned people in their yoga clothes and Ralph Lauren polo shirts it exists as a sort of dream world, but everyone else is manning the bellows keeping the thing going. "I could live here," you might think, "I could open a bookstore, or a cozy shop that sells windchimes." Except that, no you couldn't. In September, when it starts getting dark and cold again the wind would come out of the east. The days would be short, and you'd realize that one of the reasons that the place is full of pretty little churches is that places like that are just about the only place you can go and find human company.

video
Still, it was just right for a long weekend. We went to Acadia National Park (which may be the first National Park I've been to). Again, beautiful, but not quite what I am after. I like to feel as though I have earned the view by traversing inaccessible terrain. We had a decent walk, but it was not wilderness by any stretch. The sound of surf stirs me though.

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