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William C. Altreuter
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Wednesday, October 29, 2014

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.

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