Outside Counsel

Dylan's closing song lately has been "Stay With Me" a Frank Sinatra obscurity written by Jerome Moss and Carolyn Leigh. (It is on Sinatra 65, a Sinatra side that is unfamiliar to me, but which comes from the period when he could sing the phonebook. It's got "My Kind of Town" on it, and "Luck Be A Lady", which establishes once again that Guys and Dolls was oddly cast.) Full Moon and Empty Arms, now this. As Louis Armstrong said, "Man, all music is folk music. You ain’t never heard no horse sing a song, have you?" As a faithful listener to Bob's radio show it is no surprise that he thinks that way, and after Christmas in the Heart can anyone be surprised by anything he puts out? In 1965 Dylan released Bringing It All Back Home and Highway 61 Revisited, indisputably two of the most important albums in American music, and certainly more significant than Sinatra 65, but all of these sides can be listened to today with pleasure, and why not hear what Bob hears in his head when he thinks of these songs? If he'd released a collection of Sinatra songs instead of Self Portrait, wouldn't that have been amazing?

Naturally I have been thinking about the grand jury's failure to issue a true bill in the Darren Wilson case. I’ve never done any grand jury work, but as a trial lawyer I know this: a good way to lose a case is to over-try it. Three months is a long time for a panel to consider the question of whether probable cause to believe a crime was committed exists. My former prosecutor friends tell me that one develops a relationship with a panel, and it is pretty easy to read their intentions. This could have gone in quick and easy, but instead it went in long and hard– and now the DA’s office has an anonymous Grand Jury to stand behind. The smart play would have been to go for jury nullification at trial, but nobody said they were looking for smart.

Paul Campos notes that there are some peculiar aspects of Missouri law at work here:

The relevant law here consisted of Missouri’s statute regulating the use of deadly force by police officers, as modified by Supreme Court decisions that put limits on how much freedom states can give police to use such force. On its face, Missouri law still follows the old common law rule that it’s lawful to shoot and kill a fleeing suspected felon, even if the suspect doesn’t pose an immediate danger to the police or the public. That rule was declared unconstitutional by the Supreme Court nearly 30 years ago, but Missouri hasn’t yet revised its statutes to reflect this. Because of that Supreme Court ruling, the grand jury in this case was instructed that—under current Missouri law—Wilson could have legally shot and killed Brown only if Wilson “reasonably believed that [Brown] was attempting to escape by the use of a deadly weapon or would endanger life or inflict serious physical injury unless arrested without delay, and [Wilson] reasonably believed that the use of deadly force was immediately necessary to effect the arrest of the offender,” to quote the standard jury instruction used in the state.

And now a word from Bob Dylan:

In the courtroom of honor, the judge pounded his gavel
To show that all’s equal and that the courts are on the level
And that the strings in the books ain’t pulled and persuaded
And that even the nobles get properly handled
Once that the cops have chased after and caught ’em
And that the ladder of law has no top and no bottom

It's all done in our name you know. 

I don't do a great deal of appellate work, although I enjoy it. I was rusty when I appeared before the 4th Department last month, but I felt okay about it because I know and respect the judges who were on the bench, and therefore had  a fairly high level of confidence in their ability to get it right. Today I got the decision, and my confidence was rewarded.

This semester I helped a Buffalo State PolySci professor coach two moot court teams for a tournament that will be taking place this weekend. Unfortunately, snow happened, and they aren't able to get out and go to Ohio for the competition. I'm sure they are disappointed, and I am disappointed for them, but here's the thing-- they worked really hard, and learned a great deal in the process, and that was what the point of it all was. The progress they made over the course of the time I was watching them was tremendous, and will stay with them for the rest of their lives.

Over the course of my sideline as a teacher one of the things I have learned is that the hardest thing to teach is delayed gratification. We have to work to get better at things, and in many ways the work we do to accomplish that-- to get better, is where the real value is. Every cross-examination, every brief, every oral argument is important for the immediate task but is even more important for the next case, because that becomes the platform that you build on for the next case. Alejandra, Yesenia, Heather and Katie worked damn hard, and they will be better at the next thing they do because they learned how to prepare. I'm really proud to have worked with them, and I hope they enjoyed it as much as I did. I think they probably did.

I was thinking that we might have a bit of a Mike Nichols retrospective, but in fact he was so prolific that it is difficult to avoid his work. Last week, for example, we watched Closer, a movie that surprised me-- I kept getting exasperated with the characters but felt like I had to keep watching. The other evening I came home to find that A and CLA were watching The Birdcage. Regarding Henry and Wolf are kind of Lawyer Movies that I have to account for in my ongoing Lawyers in Movies project. And of course The Graduate and Barefoot in the Park are evergreens.

So instead, a couple of things that Nichols had to say about filmmaking and storytelling. First, via Mark Evanier, five rules for filmmaking:

1. The careful application of terror is an important form of communication.
2. Anything worth fighting for is worth fighting dirty for.
3. There's absolutely no substitute for genuine lack of preparation.
4. If you think there's good in everybody, you haven't met everybody.
5. Friends may come and go, but enemies will certainly become studio heads.

And then there is this: "There are only three kinds of scenes: fights, seductions, and negotiations. Oh, and contradictions. As Elaine used to say, “When in doubt, seduce.”

Here's a modest ethical dilemma: you can be an organ donor, or you can donate your body to a medical school, but you can't do both. (You can donate your corneas and still give your body to a medical school, but that's it.) My inclination is that organ donation is the way to go, and if I keel over after I post this that's what will happen: they will check my wallet and strip me for parts, and that's fine. However, if I donate the works to UB's medical school, they take care of disposal.There's a lot to be said for that. Organ donors' families get the hull back, so they still have to deal with all the funeral industry bullshit. It seems to me that organ donation offers the potential for doing the greatest amount of good overall, but I like the idea of finishing up on a slab on campus, and the simplicity of it is appealing. 

Fridays are Law Days (sometimes) here at Outside Counsel. Today, recent developments in the law of forum non conveniens. At various times forum non conveniens has been a valuable tool to have on our belt. Our hospitality practice frequently involves case in which the plaintiff was injured while on vacation, and until Daimler AG v. Bauman New York's liberal long arm statute meant that suing, for example, a Mexican resort in Nassau County didn't require much of a jurisdictional showing with regard to the contacts the resort had with the Empire State. Daimler is going to be a big mess, but until that all gets sorted out it is still more or less true that New York courts can't do much on their own about  actions that have nothing to do with New York State if the parties want to litigate here. The rule has been that a party must bring a forum non conveniens motion for the court to consider whether it maybe makes sense for a matter to be litigated elsewhere. (As the kids say, See, e.g. VSL v. Dunes Hotels & Casinos.)
Comes now Mashreqbank PSC v. Ahmed Hamad A1 Gosaibi & Bros in which the Court of Appeals holds that although nobody asked to have the case in chief dismissed on forum non conveniens grounds, the fact that a third party defendant so moved was sufficient to allow the court to consider the matter globally, and dismiss the whole shootin' match. Even more interesting, the court found that even though the decision to dismiss on forum non conveniens grounds is usually discretionary, in this instance the case was "one of the relatively uncommon ones in which dismissal on forum non conveniens grounds is required as a matter of law." There is a lot there to chew on. For one thing, as a general rule a motion for a forum non conveniens dismissal is nearly always best brought in the early going. It gets a lot more conveniens for everybody if there's been some discovery had, for example. New York makes a big deal about what a swell forum it is for international dispute resolution, and it would be interesting to know the extent to which being a favored forum for that sort of thing contributes to the economy. It's not a sneeze would be my guess, but Mashregbank seems like it injects an element which will muddy the waters somewhat. (On the other hand, seeGeneral Obligations Law §5-1402(1).)

As a rule it has been our experience that the best practice is to first remove to federal court cases that we want bounced on forum non conveniens grounds. For one thing, the rules are a bit more straightforward, and for another, since federal courts are courts of limited jurisdiction anyway they tend to be less bashful about dismissing stuff. That's still going to be the way we'll go when we can.

More for the Lawrence Brose file: this piece, which appears in today's Buffalo News (and was on line last week) represents the culmination of the media strategy we orchestrated. From our first involvement we knew that it was important to make people comfortable with the idea that they should stand with Lawrence. Some people were with him from the beginning, but others, stunned by the charges, needed to be brought around. One way to do that was for the supporters to make their support more public, which we did by asking them to write letters for circulation to the wider community. Those can be found here. The late Doug Ireland wrote a widely distributed piece--  one of the last causes he championed. And then there were the things we wrote-- for Buffalo Spree, and ArtVoice, and AfterImage, each venue selected to reach a different constituency. Some of this was seat of the pants decision-making, but for the most part it was calculated on our part, and it seems to have worked. In the immediate aftermath of Laurence's arraignment a Google search for his name led to page after page of negative news coverage. That is no longer the case.

The sentencing is November 25. Checks can be sent to The Center for Reason and Justice, with "Lawrence Brose Legal Defense Fund" in the memo line. 

It's fascinating to see the ways that technology infiltrates our lives, and one of the things that is the most interesting is that it seldom ends up looking much like we thought it would. The Jetsons had Rosie, the robot maid, for example, and back when there was an AOL floppy disk in every magazine you bought (when people bought magazines) there was a great deal of ink spent on "the internet of things". We aren't likely to have household robots anytime soon, at least not like Rosie, and it is looking pretty unlikely that we'll have refrigerators that will tell us we need to buy milk either-- but we are about to get Amazon Echo, and oddly enough it is going to fill that niche.

Echo is a voice activated internet device that looks sort of like a high-tech paper towel roll. It sits in the corner, and when you say its name it wakes up. Then you can tell it do do stuff, or ask it stuff. It's like an ambient version of Siri. What I think is the most amazing thing about it is that it seems as though it will integrate seamlessly into the most banal aspects of everyday life. What is the internal temperature of rare beef? Add milk (it's always milk) to the shopping list. Play "Strutter".  It is a hundred buck piece of hardware that seems as though it will just make things a little easier, a little more hands free, and it comes in a form that I'd have never imagined. Amazing.

Of course, unsaid is what it means that there is a machine in your house that tells Jeff Bezos everything that you do, down to how often you buy toilet paper, but that particular dappled pony left the barn a long time ago, and is frolicking in the sunlit meadow even as we speak.

I can't say that The Basement Tapes was ever a favorite of mine, although, sure, it's a pretty good album. I haven't gone out and bought my copy of The Basement Tapes Complete yet, but we all know I will. I won't buy the six CD set, because I'm not so crazy as to think that I'd ever sit down an listen to the whole damn thing, but I will buy the 2 CD edition, and I will spend a few Sunday afternoons listening to it. For me the idea of The Basement Tapes was always that whatever Dylan and the Band were laying down was supposed to be underground, and if I couldn't have it in the original, bootleg, Great White Wonder version then I was really not sure I wanted it at all.

Of course, you really need it all if you are to make heads or tails out of Greil Marcus's Invisible Republic, but actually I'm not so sure that I think Marcus has it right about Dylan in that very readable, very enjoyable book. Bob Dylan obviously lives in a very different world than we do-- he lives in a world where he's Bob Dylan, and only he can really know what that's like. Bob Dylan gets it, of course, and he's even willing to open the door a crack to let us see what that's like, but I do not agree that the world he is describing is some vision of "the weird, old America," not a bit. That world may inform him, but he lives and writes about being Bob Dylan right now, and I think that's one of the other ways we tend to misunderstand him. Bringing It All Back Home, or John Wesley Harding,  or Nashville Skyline,  or whatever-- those are sides that are about that Bob Dylan, back there, back then. The Bob Dylan in front of us is always a different cat. Hell, he even sounds different.

I've written before about how I fell off the Dylan train, and how I got back on, and the key artifact was The Bootleg Series, Vol. 1-3. The Complete Basmement Tapes is Volume 11 of this series, which has been a fascinating alternate way to listen to Dylan. As happens with a lot of music that we love, repetition has worn smooth a lot of the songs that we think of as "Bob Dylan songs", but he's written a ton of them, and an amazing number of them are great. In the Bootleg Series we get to hear Bob Dylan fresh, and it is startling to realize that he would still have been Bob Dylan even without "Hard Rain" or "Like A Rolling Stone", or "All Along the Watchtower". I'm not so sure that The Complete Basmement Tapes offer the same sort of insight. Certainly it fits into a different category: this was Dylan as collaborator, something he'd really not done to that point. (I except his attempts at singing with Joan Baez, as anyone would.) This is, I think, a worthy subject for study, but it seems to me that in considering Dylan as collaborator what we have to keep in mind is that when he has successfully collaborated as a member of a larger collective it is because he has managed to submerge himself in the project. The Traveling Wilburys works. Dylan and the Dead does not. It seems to me that The Basement Tapes is closer to the former than it is to the latter, and I'd even go further and say that The Basement Tapes is more of an album by The Band than it is a Dylan side. This is not an empty distinction: The Basement Tapes was  compiled and produced by Robbie Robertson, and the new set was produced by Steve Berkowitz. It is, I think, unquestionably more Dylan-centric than the original album, although I suppose that may mean that it is somewhat truer to The Great White Wonder-- a collection of demos. 

UPDATE: I love the headline on this review: The Basement Tapes Complete Gives You All The Bob Dylan You Can Stand

I was Number 96 at my polling place at 5.53 PM. That's not great-- it trails the turnout for the school board election last May, for example. I make no excuses for anyone else, but the only "competitive" races were for State Senate and Supreme Court. The State Senate race ended oddly: the Democrat won, but he is, at best, a flawed Democrat, with a prior conviction for election fraud. It is, I think, unlikely that he will hold the seat for long. I voted for the incumbent, who was a Democrat once, then ran for and won the seat as a Republican, then voted for the SAFE Act and marriage equality. He got primaried, lost, and ran this time on the Independence line.

The whole process felt kinda dirty, and not in a good, mucking out the stables sort of way. I'm glad that Fred Marshall and Donna Siwek won-- they are both excellent judges, but damnit, judicial elections are horrible. And stupid.

As for the rest of the country, words fail me.