Outside Counsel

Sonia Sotomayor may be the greatest Supreme Court Justice of all time. She was already a contender merely for appearing on Sesame Street (and now I am imagining Clarance Thomas having a conversation with Oscar the Grouch), but she is also, apparently, an awesome person who would be fun to be friends with.

If Sotomayor seems comfortable putting her colleagues through the paces, that may be because she has a penchant for pushing herself. This past weekend, at a reunion event for Yale Law School, she revealed that, when it comes to dancing, she’s hardly a natural. “I can’t keep a beat to save my life,” she admitted. That fact kept her away from dance floors for most of her life until she finally decided, “This is something I want to change.”

And so Sotomayor signed up for salsa lessons. She was 50 at the time and a newly minted member of the 2^nd Circuit Court of Appeals.

Diversity is a concept that is sometimes mocked by the sorts of people who, for one reason or another have never experienced it, and empathy as a judicial quality was expressly derided when Justice Sotomayor was undergoing the confirmation process. On some level the Princeton and Yale educated Sotomayor may not seem so diverse: her educational pedigree  means that she can join clubs that I can't, and I'm a white middle-aged male. Confronted with the two of us, Oliver Wendell Holmes would have handed Justice Sotomayor his coat, and asked me to join him at the bar, and that all by itself is why it is so great to have a Supreme Court Justice that took salsa lessons at 50.

Because I have been spending time teaching oral advocacy I've been thinking a lot about oral advocacy, and so tripped a little over process and protocol yesterday. I made my points, but it was clear from sic 'em that the panel knew what my points were, understood what both of us were driving at, and had a fair handle on where they were going to go with the case. What made me happy watching them was that the bench was active and engaged with every case that came before them that morning. The judges were respectful and gave good value: nobody was left twisting in the wind, and I think everyone (except maybe the woman who had the defendant in a "sole proximate cause" Labor law §240 case) walked out feeling like they got a decent hearing. The §240 case was the most interesting thing on the docket: apparently the hapless plaintiff jury-rigged a scaffold platform by using the bucket of a backhoe for one side of the support. Naturally this ended poorly, and as Justice Lindley noted the fact that the backhoe bucket was used this way pretty much established that the plaintiff had not been provided with the necessary safety equipment. Justice Fahey put it all in a nutshell: if there is any other cause than the plaintiff's actions cannot be the sole proximate cause, and that means that whatever stupidness the plaintiff engaged in amounts to comparative fault and is therefore no defense. There was, apparently, an issue in there about expert proof, but the bench blew past that. Having argued my share of §240 cases over the years I recognized the expression on counsel's face as she walked out after her argument. I suspect her steering wheel got a fair banging on her drive back to Syracuse.

I'm arguing an appeal in the 4th Department tomorrow, so, as one does, I am doing a lot of fussy things to prepare. Obviously I'm re-reading the briefs and the record; of course I'm printing out all of the cited cases (again) and annotating them (again). I've got a nice legal pad all set. Just to be super-sure, I just did a Google Maps search for directions to the courthouse, because it has been a while. My rule of thumb for appearances in both Monroe County and the Appellate Division has always been, "It's a little bit farther than you think," and sure enough, Google says it is an hour and ten minutes away-- exactly a little bit farther.

Time for a moratorium on the following:

Sometimes Outside Counsel is just a notebook. The Best TV Shows on Amazon Prime

Charley Pierce on the perils of an elected judiciary.

I'm not sure why the 92nd Street Y chose The Man Who Shot Liberty Valance before Justice Breyer's talk the role of law and lawyers in society-- it wouldn't have been my choice. I suppose there is a core truth in Liberty Valance that goes beyond "When the legend becomes fact, print the legend." In a sense when we are litigating a matter what we are doing is working towards an agreed upon set of facts-- and when the matter is decided at nisi prius  we become locked into those facts, whether or not we "agree" with them at that point. In recent years it has become fashionable among lawyers to quote John Adams: "Facts are stubborn things,"and I suppose we are being sincere when we say it, but the reality is that we all know better. Facts are different from evidence after all. The law of evidence evolved the way it did in a charming effort to develop a sort of science of reliability in the face of a world which we know to be unreliable. Evidence is, in the end, a system of excluding certain types of proof in favor of other types. We first eliminate the irrelevant, a complex task in an interconnected world; and then we consider what other types of proposed proof are or are not testable. When this was all being worked out science was thought of as Natural Philosophy, and so principles of scientific reliability were applied: hearsay rules are really just a way of barring forms of proof that are not subject to verification or rejection by cross-examination. What that means, ultimately, is that the version of the facts that we as lawyers see is distorted through the lens off our artificial apparatus of truth-seeking, and in some ways that lens is as unreliable and as subject to wishful or heroic thinking as the question of who was responsible for bringing law and order to Shinbone.

An aside: I'm always a bit shocked when I recall that Liberty Valance was released in 1962-- it seems like an older movie to me, and its distinctive cynicism seems out of synch with the supposed optimism of the  Kennedy years. In a sense you might argue that Ford was weirdly prescient: we recall 1962 and Kennedy as legends now, don't we?

Albums That Never Were. In the mid-to-late 70's this was a popular sort of mixtape: constructing albums that hadn't been released by bands and artists from solo projects, B sides, compilations, soundtracks and the like. Back then a lot of these projects consisted of creating post-Beatles Beatles albums, but Crosby, Stills, Nash and Young sets were also easy to put together. There's a lot more out there these days, and this guy has created "lost" albums by Pink Floyd, The Who, and a bunch of others. He even remixes some of them. Pretty cool.

More for our Perils of an Elected Judiciary File. The Supreme Court is poised to rule on the question of whether judicial candidates can directly solicit campaign funds. How could that possibly go  wrong?

I'm helping out with BuffState's moot court program again this semester. It's kinda fun to do, and it broadens the kind of students I work with, but best of all it gives me an opportunity to think a little bit about larger socio-legal issues. This year's problem involves a hypothetical statute which requires women seeking an abortion to undergo and watch a trans-vaginal ultrasound, along with a 24 hour waiting period, and some other stuff. The performing physician performing the procedure must read from a prepared script, and cannot depart from it to offer any further medical advice, so both the undue burden issues surrounding abortion rights and First Amendment issues are implicated. It's a nifty problem, I think, and it forces one to confront an uncomfortable question: Can we assume the good faith of any legislature?

I am reminded of this because Outside Counsel hero, the Hon. Richard Posner, has reversed himself and written a strong opinion about voter identification laws.

This opinion, written on behalf of five judges on the 7th Circuit, thoroughly disabuses such notions such as: these laws are meant to deal with a phantom voter fraud concern (“Out of 146 million registered voters, this is a ratio of one case of voter fraud for every 14.6 million eligible voters”); that evidence shows them to be little more than baldly partisan attempts to keep Democratic voters from voting (“conservative states try to make it difficult for people who are outside the mainstream…to vote”); that rightwing partisan outfits like True the Vote, which support such laws, present “evidence” of impersonation fraud that is “downright goofy, if not paranoid”; and the notion that even though there is virtually zero fraud that could even possibly be deterred by Photo ID restrictions, the fact that the public thinks there is, is a lousy reason to disenfranchise voters since there is no evidence that such laws actually increase public confidence in elections and, as new studies now reveal, such laws have indeed served to suppress turnout in states where they have been enacted.

Voter ID laws are, I think, pretty plainly designed to suppress minority voter turnout, just as the laws in Texas, Missouri, Indiana, the Dakotas, Arkansas, Georgia, Idaho, Michigan, Nebraska, the Carolinas,  West Virginia, real Virginia, Mississippi, and Kansas (ugh, what a list) are forced pregnancy laws. The history of the jurisprudence surrounding women's health issues -- or rather, the history of state legislation in the years following Casey v. Planned Parenthood looks to me like the same sort of bad faith, but legislative competence and good faith must be presumed.

This just in, Professor David Siegel has died. Professor Seigel's name is associated with New York Practice the way that Lawrence Tribe's is associated with Constitutional Law, or Prosser's is with Torts. My copy of Siegel's New York Practice is the book I keep closest to my desk-- as I write this I can put my hand on it. One of the best things about belonging to the New York State Bar Association has been the subscription to his New York State Law Digest. What made him great was not just the depth and breadth of his command of the law-- it was that his writing was clear, and beautiful, and frequently funny. That's not so easy to do when one is writing about New York's Civil Practice Law and Rules, but Professor Seigel had a deft touch.

Fridays are Law Days (sometimes) here at Outside Counsel. Today, a useful piece on Social Media and Spoliation, via friend of the blog Nicole Black. The take-away? If your client has put something out there, they can't take it down-- but they can adjust their privacy settings. 

 Patrick Modiano. Don't know him, but I'm certainly open to reading something by him. Local Public Intellectual (yes, that's a thing) Jeff Simon weighed in on Noble Literature Prize earlier in the week: he is grumpy because an American hasn't won since Toni Morrison in 90's, and was rooting for Philip Roth, or Joyce Carol Oates, or Richard Ford. There is a good case for Roth, based on his own shelf, and on his work promoting Eastern European writers, but there are always good cases to be made for a lot of people. I'm re-reading The Quiet American at the moment-- just finishing it up, actually, and Graham Greene, famously out of favor with the Swedish Academy, had a great case for the prize. The prize has gone someone born in the US 8 times; only France (11) can claim more native winners. Germany has had 8, the UK 7 (including Winston Churchill). Sweden has had 7, Italy 6, Russia and Spain 5 each. Of course, a lot depends on how you count: Joseph Brodsky was born in the Soviet Union but was an American citizen when he won; Isaac Bashevis Singer was born in the Russian Empire. (Saul Bellow was born in Canada.) Actually, Russia presents a real dilemma if you are keeping score--  some cats, like Aleksandr Solzhenitsyn and Boris Pasternak were citizens of the Soviet Union, Ivan Bunin was born in the Russian Empire, wrote in Russian, lived in France, and was "stateless" according to the Academy. And so on. It probably makes more sense to break it down by language, or maybe not to break it down at all. There is really no purpose to treating the Prize as if it is some kind of US News & World Report ranking system.

On the other hand, this year's nominees for the Rock and Roll HOF are ridiculous: Green Day, Nine Inch Nails, N.W.A, the Smiths, Lou Reed, Sting, the Paul Butterfield Blues Band, Kraftwerk, Chic, Joan Jett & the Blackhearts, the Marvelettes, the Spinners, Stevie Ray Vaughan, War and Bill Withers. Reed is already in for his work with the Velvet Underground, but his subsequent career merits recognition. I wish the Smiths were more significant to me personally, but okay. Kraftwerk absolutely, likewise Chic and the Spinners. Sorry, Bill Withers, wrong HOF.

I just got back from the funeral of a total stranger.

I was reading the paper Sunday when I saw an obit for Pamela X. There was no information about a wake, and the funeral was today. I glanced at the survivors, saw the name by which Captain X is more widely known, and made a note of the time and church where the funeral was to be. I hadn't heard from Captain X in a few weeks, and reckoned that this must be why.

When I got to the church it was packed to the walls. I slipped into a pew towards the back and started to look around, but I saw nobody that I knew or recognized.

The pallbearers and coffin entered. Oddly, I recognized none of them. They were all terribly broken up. The Mass commenced. We'd gotten past the opening prayers, and were into the  first reading, which was being given by someone I'd never seen before. I snuck a look at the Order of Service, and realized that none of the people named had names that matched known X siblings. I slipped out through a side door, and called Captain X's office. "He is out of the office at a meeting," the receptionist said. "At a meeting or at a funeral?" I asked. "He said it was a meeting..." she said. "Well, look, if he was at his mother's funeral would he have told you that?" I... think so," she said.

This was getting me nowhere, so I decided to call Mrs. X-X.  I suppose I should work on my telephone manners, which I grieve over during the long nights. "Hello?"
"Did I get you in church?"
"No, why?"
 "How's Captain X's mom?"
"Who is this!".
" Hi X, it's Bill Altreuter. How's Captain X's mom?"
"She's fine. They were just over for dinner last night. Why?
"Well, I'm glad to hear it, because the lady whose funeral I just left wasn't doin' so good."

Another morning shot to hell. I considered sticking around for the breakfast, but decided against it. It's not that often you can walk away from a funeral serene in the knowledge that whoever it is that is grieving, everyone you know is okay.

Last night I watched a documentary about Muscle Shoals Studios. It was pretty nifty-- but I've come to the conclusion that "Sweet Home Alabama" is as offensive as a Nazi flag. I'm alone this week, and I could be doing all kinds of crazy stuff, but instead, I'm watching music documentaries. There seems to always be an irritating jerk in music documentaries, and in this one the asshole is Bono, who is full of shit about the mystical properties of the soil and the sunlight in Alabama. Mick and Keefe, on the other hand, talk about what a blast it was to play there. ("Those guys had chops, you know? Cough, weeze cough". Keefe is made of phlem, sinew, and riffs.) Muscle Shoals doesn't look like much of a town-- I wonder what the Stones ate when they were recording there?

It's this dopey little burg on the Gulf Coast in Alabama, but it is also the Nashville, or Memphis of  Southern Rock-- the place where it was invented. Aretha Franklin recorded her first hit there, and Etta James worked there, and Wilson Pickett. The only people who are actually from there are the guy who built the studio-- a former musician who'd worked in Memphis, and was mentored by Sam Philllips-- and the mostly white guys who were the in-house band. The room had good sound, and the band was pretty great-- I mean, what's not to love about "Mustang Sally"? Duanne Allman was the house guitarist, so it really is where Southern Rock germinated. As is usually the case, it was a kind of cultural appropriation, but that's the whole history of America, isn't it?

I've always wanted to take a tour of the studios where the stuff I like was made. Secret Sound in Midtown, and Rudy Van Gelder's place in Hackensack. Muscle Shoals would be another, and I suppose Abbey Road. Most are still working spaces, and probably have very little resemblance to what they were. The only one I have seen is Sun Studio in Memphis, which was damn near a mystical experience. Sun blew my mind, because it was intact. People still record there-- including U2, because fooking Bono found it so mystical. Bono thinks everything is mystical, because he is Irish, but I suppose, really, I'm just as bad. I mean, why would I want to go to the place where Thelonious Monk recorded "Well, You Needn't" if I didn't think there was some quality to it that I could experience just by visiting?

I'd go to Muscle Shoals, see, and I'd have a fried oyster po'boy, and then I would have a massive  gout attack, and have to stay in the Muscle Shoals MOT*L 6, because the 'e' is burned out.And then they would make fun of the way I talk.

I see this working out well.

The fetid Alabama air, and the many, many flies.
"Y'all want a fresh towel, mister?"
"Ughhhh." I can't really sleep when I am having a gout attack, and they don't have a doctor there-- just a veterinarian who sometimes does abortions. I try calling him to see if he'll slip me some cortisone, but all he has are the pills dosed for cats, and he won't write me the script. "I'm sorry," he says on the phone, "But you will have to bring Mr Sox in for me to see him before I can dispense." He knows, of course, that Mr. Sox is a fiction. I'd called him and asked for drugs, and when he said no, I made the cat up on the spot. "Uh, it's not actually for me, it's for my cat, uh, Mr. Sox. He has been throwing up...."  Probably he thinks his phone is tapped. Maybe it is. This is no part of the America I think I know. This is a gout-induced dreamscape brought about by reading too much William Faulkner and listening to 'Freebird'.

And after all, who the hell would travel to this swamp with a cat? There are plenty of cats here, of course, down by the dock where the Vietnamese shrimp fisherman dock, but they aren't cats anyone would adopt. One-eyed, three legged, with bits of tail missing, chances are they wouldn't deign to become housepets. The docks is the life they know, and I can imagine them singing "It's A Fine Life" from Oliver. A swaggering chorus of cats: "If you don't mind 'aving to deal with Fagin/It's a fine life...." I'm not sure how a movie musical has crept into my fevered gout dream, but there is is, and no veterinary cortisone to sooth me. "Where would the cats have learned the song?" I wonder. Its a cinch Duane Allman didn't teach it to them.

I consider trying to get up and get something to eat. The oyster shack is out of the question, of course. Even if I stay away from the bivalves, everything there is fried in the same oil. Maybe there's a lunch counter somewhere? This place doesn't seem so integrated, even now, and lunch counters were big in the South, weren't they? Maybe I can get a grilled cheese and a cup of coffee....

The Erie County Bar Bulletin has published my piece, "Just Look At It" in this month's edition. Regular Outside Counsel readers may recognize this as a piece which ran here, in slightly altered form, a little over a year ago. Close readers will note that in its original form some of the language was a little saltier. I felt like that was an important quality-- really what I was trying to comment on was less about the ubiquity of video, and the interpretation of video evidence, and more about the realities and frustrations we encounter in the day-to-day practice of our glamor profession. I shopped the piece a fair bit, but didn't get a nibble until I got to the ECBB, so by that time I was prepared to accept any changes anyone wanted to make-- we aren't talking about Rinehart & Company's attempted suppression of The Deer Park here. Still, I was taken aback when my editor told me they couldn't print my mild swearing because, "We're a family publication." I suppose there may be families that sit around the breakfast table and read the Erie County Bar Bulletin, but it's hard to picture. It is also hard to imagine that any such family would balk at words like "goddamn" or "bullshit". Indeed, it seems more probable to me that Sunday brunch in such a family would more closely resemble a meal with Lenny Bruce than it would dinner with the Archbishop.

I think of myself as a procedure mavin, but I'm really more of a state court guy. It would never, ever happen that UB would ask me, or any other adjunct, to teach Federal Courts, but it was one of my favorite courses in law school, and it is a subject that is endlessly interesting to think about. Professor Georgene Vario writes here about some approaches to the topic-- she teaches it as "Complex Litigation and Federal Courts" and has, in the past taught it as a straight-up Hart and Wechsler course and as a class about the politics of federalism and separation of powers, as well as thinking of it as a sort of "Best of Civ. Pro and Con Law". All of these are appealing approaches.

 Try not to be intimidated by the cases and concepts, I would urge them. Instead, think of our constitutional system as a great ballroom with various dancers—the Executive Branch, the Legislative Branch, the judiciary, the administrative agencies, the states—all taking their turns dancing, and all taking their turns leading or following.

What I enjoy about Civ Pro is it is where the practical meets the theoretical, and I think that would be my path in. In my Discovery class I explain the difference between state practice in courts of general jurisdiction and federal practice by telling the students that state courts are like petri dishes, where cultures are encouraged to  grow. Federal court is more like an organism with a complex immune system. Some bacteria are beneficial, and thrive, but others are perceived as an attack on the organism and are attacked and rejected. In New York Practice we say, here are the tools. In Federal Practice many of the tools are the same, but the space you have to work with them is a lot more constrained. To understand why that is, and how to deal with those constraints requires the student to cover a lot of ground, and it isn't everyone's cup of meat, for sure. I'm not so sure that most lawyers even need to understand it, but the ones who are interested in it are probably going to be the lawyers who are the most satisfied by the weird intellectual rigor of our glamor profession.

Back in 2009 a plane crashed into the home of some people in Clarence, an outer ring suburb around here. Everyone on the plane died. Two people in the house were injured, and another was killed. The lawsuits on behalf of the people on the plane have all been settled, but the people who were in the house aren't subject to Warsaw Convention damages limitations  and their case is being tried right now. The lawyer for the plaintiffs is the daughter of Paul Beltz, who was a legend. I practiced with Anne back in my Kelner days. She is damn good. I also practiced with the guy who is leading the defense team, back in my Saperston days. He is also damn good-- kind of a wizard in a way. I'm not aware that he's tried anything at all in the last twenty years, but he probably has, and is, in any event, one of the best I've ever seen.

Watched Twenty Feet From Stardom last night. Great music, obviously. Interesting stories, too. The structure of it was notable, and I want to dwell on that a bit. The movie is about backup singers, and it features one who broke through after she was 40 to become a star in her own right; one who almost did, but didn't, quite; some who've made a living at it; and one who is trying to become a solo artist but hasn't, at least yet. Throughout we get some interviews with some of the big deal stars that the singers (all of whom are women, by the way, and mostly all African-American) have worked with. Bruce Springsteen, Sting, Mick Jagger. All three of these white guys admire the craft that the singers bring to their performances-- but both Sting and Springsteen seemed somewhat condescending to me, particularly the loathsome Mr. Sumner, who seems to think that being paid scale and scuffling for gigs is what develops character and makes these women good artists. Springsteen is only slightly better: he seems to be implying that there is some element lacking in the make-up of these singers that prevents them from becoming big-deal popstars, like him. Oddly, Sir Mick comes off the best: he talks about singing with Merry Clayton and it is clear that he had great time doing it, admired her talent, and respected her as a person.

It's funny how it goes. Just last week I was talking to a friend about the idea of meritocracies. You'd think that there would be fields where the best rise to the top, but if there are I am not sure I know what they are. It ain't art or music, and although sport might seem to be the answer, there are a lot of athletes out there who feel like they had the tools and just didn't get the breaks. For every Kurt Warner who somehow breaks through there are dozens of QBs who got sent in for a series and then sat  for the rest of their careers. In our glamor profession keeping score is tricky. Some people reckon it is as easy as counting the money, and some think it's about ascending to the bench, and some people even think that becoming a law professor is the pinnacle, but the Kurt Warner principle is at work here too. I know lots of rich lawyers, and enough stupid judges, for sure, and the law schools are full of dolts who found that actually practicing law was not to their liking, but enjoyed academic politics just fine. I'm glad Darlene Love gets her props, and Merry Clayton's vocal on "Gimme Shelter" gives me chills every single time.