Outside Counsel

Here's something that I don't think has happened to me before: I am a character in a letter to an advice column.  In Through the Looking Glass Tweedledum and Tweedledee tell Alice that she is just a character in the Red King's dream, and will disappear when he wakes up. I feel kind of like that.

When EGA got sick I wanted to write about it, but for the most part I felt as though the effect of her illness on me was dwarfed by the magnitude of what she was experiencing. It felt solipsistic to write about my experience as though its importance was anything like as significant as hers, so I mostly didn't. Appropriation is a tricky thing. At the City of Night event in the Old First Ward  for example, great care was taken to solicit and engage the people in the neighborhood. We did not want it to be a bunch of outsiders rolling in and saying, "Well, isn't this shabbiness chic, now that we have discovered it." We wanted to celebrate the place,  which is an important piece of Buffalo's DNA, if you will. Even so, someone used the hashtage #NewFirstWard and a number of people were really offended. That act --  a verbal act, an act of labeling, was a sort of cultural imperialism akin to explorers from Europe claiming to have discovered two continents that had been there all along.

So too Joyce Maynard, who was her own character when she wrote "An Eighteen Year Old Looks Back at Life", but soon enough appropriated J.D. Salinger-- arguably the most private man in America at the time, and then, in her voracious appetite for narrative, appropriated the stories of her daughter, and pretty much everyone else she came into contact with. Maynard is an extreme example, because she seldom bothered with pretending that what she was writing was fiction, but I worry about taking things that are properly other peoples' experiences and presenting them as my own work. It seems to me that there is an existential peril involved: If I appropriate your story. If, as I believe, our lives are a narrative, then what remains of my narrative when I appropriate your story and present it as my own? (Of course what this means in part is that I believe the actual 'work' is the living of the life rather than the reporting of it. That's a slightly different discussion.)

Lillian Hellman was accused of this, you may recall. In her memoir "Pentimento", (which was made into the movie, "Julia", is said to have appropriated an episode of Muriel Gardiner's life as an antifascist activist in Vienna. Hellman denied it, and when Mary McCarthy called her out on it, ("Every word she writes is a lie, including 'and' and 'the') Hellman sued the hell out of McCarthy. Obviously Maynard and Hellman-- who are both kinds of monsters to me-- are extreme examples, but in my writing I endeavor to stay as close to the meat that clings to my bones as I possibly can. Perhaps this is a mistake. Maybe what I should be doing is using other peoples' material in order to explore issues and ideas that are larger than, or just different than my own. Since I seldom feel as though my own story is more than merely anecdotage maybe what I have done to myself to to trap my writing in between the banks of an impossible to navigate river. Can't write about other people, won't write honestly about myself. That is a possibility, and I won't pretend that it isn't a concern.

But that's not really what is peculiar about the experience of seeing an anecdote in which I am a character (a vaguely comic character at that) in print. What that seems to be about is a concern on my part, rooted in vanity of course, is that in this anecdote what I believe to be my complexity, my dimensionality, is lost. I have become, somehow, the father in Clueless-- a supporting character in someone else's movie. It is strangely jarring to find myself recognizing that character, and then realizing that I recognize him because he is me, like staring at a stranger across the room in a bar, and then realizing that I am looking in a mirror.

My classmate Ken Kirby has an article in the July New York Bar Journal on the question of whether filing a 90 Day Demand to Resume Prosecution waives the defendant's right to further discovery. There is a split in the Departments on this, and the Fourth Department holds that it does. Ken argues, persuasively, I think, that it shouldn't.

A couple of thoughts: I'm as CLS as hell, and I think there may be a Critical Legal Studies answer to the question of why the 4th Department treats 90 day notices the way that it does. The culture in the 8th Judicial District, which dominates the 4th Department, is to treat the Note of Issue as a formality with the primary purpose of generating revenue. As I am sure you are aware, the usual practice around here is for the trial court to set a date by which the Note of Issue is to be filed, and to set a trial date at the same time. As a practical matter this means several things happen routinely. First, if a Note of Issue is filed before discovery is complete the trial court (or the parties, by stipulation) simply continue conducting discovery. Of course, this has Brill implications, but since the majority of civil cases around here aren't summary judgment type cases the Brill issue is winked at. The second big thing is that juries are regularly picked, and cases tried, when the Note of Issue hasn't been filed, or has been filed at the very last minute. I have had Notes of Issue filed and served as I was in the jury room, and this is not a rare occurrence. In addition, in the however long I have been practicing here I have never had a Note of Issue stricken. I gave up even making the motion a long time ago. I suspect (although you would know better than I would, have done the research and all) that there is a paucity of 4th Department decisional law on the question.
It occurs to me as well that there is a third option beyond letting a case linger or filing a 90 day demand. I have, on occasion, filed the Note of Issue as a defendant. Obviously this does -- or should-- amount to a waiver of further discovery, but since the culture here does not treat a Note of Issue very seriously (except, again, in a Brill context) I have found that the courts generally direct that I remain open for discovery even after I have filed.

Well, this explains a lot. For a long time I've wondered how any sane person could possibly think the NYTimes is liberal. Maybe it is because it is being evaluated by its readership rather than by its content. In today's Magazine there is poll data that says 36% believe in God"; 39% do not; and 25% are not sure

This past weekend -- the past few weeks really-- have had me thinking about what it is that our job actually is in our glamor profession. I had two major events coming to a peak at the same time, and in many ways the two, which on their face couldn't have seemed more different, called upon me to do kind of the same things, using different tools.

First and foremost a case I'd been working on for a couple of years came to trial. I'd done the discovery, reviewed the materials, written analyses of the law and the facts and the evidence-- and then, about three months ago, when the case was supposed to be tried, opposing counsel served discovery material which radically changed the entire complexion of the matter. This meant that I had to work with my knowledge of procedure to revisit all of the work I'd done before, revise my strategy, and employ a number of tactical measures in order to get back on top of the case.

The second big thing was that ELAB-- Emerging Leaders in the Arts Buffalo-- was in the final stages of mounting its annual event, City of Night, in a new location. I came on the board of ELAB last winter, and have been doing the fidgity bits that the lawyer on the board on an arts organization does, but with City of Night peaking I found myself doing a lot of urgent transactional type work, reviewing contracts, writing contracts, negotiating insurance, documenting grant condition compliance, that sort of thing. The main lifting for this was done by everyone else, but there was helping to set up to do too. The big thing I do at these sort of events I call 'the liability walk-through' and the audacious scale of CoN made that a particularly daunting undertaking. What we were doing there was basically shutting down most of an entire neigborhood, Buffalo's Old First Ward, for live performances, arts installations, historic tours. Oh, and beer drinking, because Buffalo.

Along the way I was struck by the similarity between the two projects. Perhaps because the other people on the board of ELAB are artists I saw that these two undertakings were exercises in creative problem solving. The case I was trying was a full liability matter, and I was working to contain the damages exposure, using a lot of the CPLR and a lot more of my advocacy skills. City of Night was similar: there were mechanical tasks-- filling out applications and the like-- but a lot more was working as an advocate to facilitiate communication between the various independent people and entities that needed to work together.

In the end both events concluded very successfully, and I had that good, exhausted feeling that you get after you've completed a race you've trained hard for, or a day of great skiing. I'd used almost all of my lawyer resources, and I felt pretty good about that.

The Buffalo News' Colin Dabkowski on the ordeal and redemption of Lawrence Brose.

I'd forgotten that Donald Trump's lawyer was Roy Cohn. Cohn has always been a weird sort of personal monster to me: I used to have dreams about him. He was the ultimate fixer, a sleazy guy who seemed to know everyone, and who made his way in the world by making phone calls for favors to people who owed him one. Because his milieu was  The Bronx, where I regularly appeared when I was starting out, I was able to discern aspects of his presence and influence in a lot of corners. In fact, without knowing about my strange fascination with Cohn the guy who taught me this business once told me a story about he'd crossed paths with him. He'd done something small for him because he'd been asked to by a third party, and Cohn told him he could call if he ever needed something. Remo told me, "I thought it was a better idea to steer clear," and that should give you some idea of why Remo was a hero to me.  It's funny how it goes in this glamor profession; a lot more goes on beneath the surface than anybody who doesn't dwell there ever suspects. I am a snorkeler in my cove -- I can sometimes see the fish that swim near the top, and looking deeper I can see the old wrecks, and the reefs, but what goes on at those depths is an ecosystem that I am not a part of, and know little about.  

Tom Petty's radio program on XM, "Buried Treasure", is a consistent delight. He goofs around, and plays stuff that I haven't heard in years-- and some stuff that I've never heard. He's had a heck of a career, and I'd say that side for side his work stands above almost all of his contemporaries. He's also a class act.

I really ought to delve into Eighth Amendment jurisprudence some time. It seems to me that its wording is an implicit recognition that the Bill of Rights specifically, and the Constitution as a whole were intended to be understood as the foundation for an evolving jurisprudence-- but let's face it, the concept of an evolving constitutional jurisprudence isn't particularly new. Marshall got it, and so did Holmes. Strict textual ism is a comparatively new form of reactionary legal thought. The most recent death penalty case is pretty ugly stuff. Justice Alito has announced, more or less out of nowhere, that if someone wants to argue that a particular form of execution is "cruel and unusual" than it is necessary to propose an alternative. Don't wanna be locked in a room with a live tiger? Well, what do  you want to be killed by. The reasoning is that since capital punishment is presumptively constitutional something something.... Petition Denied. It really would be refreshing if we had Supreme Court Justices whose thought processes had evolved past late-night dorm room debates.

In any event, I was pleased to learn today that whenever a death sentence is commuted or a death-row inmate is released anywhere in the world, the Colosseum’s nighttime illumination is changed from white to gold. Way to go Italians! I look forward to the day when the United States joins the rest of the civilized world and leaves the executions to the Saudi Arabians and the North Koreans.

To Steve Earl and the Dukes last night, at the Iron Works, a venue that was new to us. Lemme just go out on a limb right here and say that Earle's body of work compares favorably to Neil Young's. From a genre perspective the two artists are working slightly different traditions-- Young, his Ontario roots notwithstanding, is about as California as it is possible to be, while Earle is steeped deep in Texas. Both write beautiful songs about romantic yearning, but it seems to me that as political songwriters Earle has the edge, and that's a pretty substantial thing, to be able to write a song of social awareness like. "The Revolution Starts Now" without sounding preachy, or trite, or naive.

I'll tell you what also, Earle has hisself a crack band too. A husband and wife billed as The Mastersons: Eleanor Whitmore on fiddle and other instruments and Chris Masterson on guitar
opened as a duo and were a pleasant surprise, but they really got going once the headliner took the stage. Earle mainstay Kelly Looney was on electric and upright bass and Will Rigby handled drums. Masterson is the real deal, a Texas guitarist who clearly spent a lot of time with Johnny Winter records on the way to developing his own style. There were some technical glitches with the mix, and the weather was rough on the tuning at times, but it has to be said that the band really delivered. I'm not sure why I hadn't seen Earle before, but I won't miss him again, and I'll be picking up a side by the Mastersons.

I downloaded the new iOS, deactivated the automatic subscription feature, and tried to stump Apple Music. Crack the Sky? Got it. Ornette Coleman? More than you could ask for. Watertown, the obscure Frank Sinatra concept album? Right there. Jack Dejohnette? Can't say I am familiar with his entire discography but there was plenty there to get started with. I tried playing hardball-- the version of "Memo from Turner" from the Performance soundtrack has always been an album-only track on iTunes, but there it is. In fact, it's got "Schoolboy Blues", the song Mick and Keith wrote to get out of their contract with Decca, known by another name and only officially released later by Decca in West Germany in 1983 as bonus single in a four-LP compilation and subsequently withdrawn. How about Johnny's Dream Club, the album by Cuban musician Juan-Carlos Formell that I once described as "music like a Marquez novel, full of influences from everywhere, but a thing utterly unto itself." The CD I bought at the Art of Jazz series where I heard Formell and his band was barely a step up from having been burned at home, with cover art that looked like it might have been Xeroxed, but there it is. I know if I keep at it I will eventually stump it, but that's not the point. The point is that this looks really, really close to being worth ten bucks a month. Right now I have 26.3 GB-- 2, 252 songs-- on my phone, and a gigantic piece of furniture in my living room for my vinyl and CDs. I have an iPod Classic with even more music, and an old iPhone 3GS with still more. Obviously there is a lot of overlap-- the three iDevices tend to skew towards different genres, and the vinyl is chiefly rock and jazz. I like the artifacts that package music, and I doubt that I will ever be at the place where I don't want liner notes and album art for the things that I really care about, but... wow. Apple Music may be the thing that opens up a lot of storage space in my life.