Outside Counsel

Although I enjoy judging moot court, I don't usually get asked to preside at the Mugel competition. Named for the late Al Mugel, an alum and a tax practitioner and a tax professor at UB, this competition, long a signature event for my law school, focuses on tax law. Once tax was the thing my school was known for; now I'm told it is not even a required course. Worse, perhaps, is the fact that the Mugel competition, Buffalo's claim to fame on the national moot court circuit, seems to be on the ropes. Entries were down, and the Moot Court Board was so strapped for judges that not only was I asked this year, I was asked to put the arm on as many of my friends as I could. I have no idea if my invitation to participate garnered any assistance, but this evening, just after I got home I got a call from my friend and clerk, coincidentally the Moot Court Board president, and was asked if I could come down tonight-- a day earlier than I'd planned, to fill an 8:00 o'clock vacancy that had just developed.

It's flattering to be asked to participate in this sort of thing at all, frankly, and to be the fireman was certainly more than I could turn down so I made the scene. Since I am not a tax jock, I was hoping that the other volunteers on the panel would do the heavy lifting on the substance. Usually there are three judges on a panel in the preliminary rounds, but tonight the cat who was supposed to fill out our panel never showed, so there were just two of us. The students who were competing were quite good, and my co-panelist, thank goodness, was a tax practitioner who was able to waltz them around the Code, even as I was trying to get my mind around the issues. In the end I think they had an experience that was probably pretty close to what actual appellate argument is like. I have to say, though, that I felt like I was working nearly as hard as they were.

I mention it because I am disappointed with every single person who got the invitation and didn't respond, as well as with the people who just bailed out. Frankly, the lawyers who were invited but couldn't make the time are not on my list of star members of our glamour profession either. It is a small enough thing to give up a part of a Thursday or Friday evening to help train the lawyers we'll be practicing with in the years to come. And it is an important thing, I think, to help promote the law school that made it possible for us to practice this pleasant living. Judging moot court is an easy way to keep your mind nimble, and I can't believe that in the whole Eighth Judicial District there weren't enough lawyers available to fill the bench for an event like this. Hell, it's not like it's work-- I learned something about the state of the law that I did not know this evening (and got CLE credit-- no small thing)-- and I had fun. I'm on deck for tomorrow, but I'd feel a lot better about my colleagues if I don't get the call.

I'm not sure where I take this particular gripe next. By virtue of my clerk's involvement, I have a pretty good idea about the amount of effort that went into recruting judges this year-- I've seen get out the vote drives that were less intense, and if it had come down to offering transportation I have a feeling it could have been arranged. The lack of support from the legal community on this falls right into the laps of our bench and bar-- and I'm embarrassed by it. We do our profession no favors this way, and I'm upset enough that I'm inclined to push the matter a little bit further.

To my disappointment, I will be out of town for this year's Mugel Tax Law Moot Court competition, and cannot act as a judge. It's the easiest, most enjoyable CLE credit out there, it's free, and it's one of the best things that practicing members of our glamor profession can do for the people who aspire to our lofty position. Last year they had a tough time finding enough judges, which was something of an embarrassment-- it's a national competition, and the shortage reflected poorly on my law school and on our local bar as well. Even though I'm no tax jock, the problem was interesting and engaging, and since the point is to evaluate the advocacy skills of the participants not knowing much is almost an asset-- if a team could explain its position to me, I was halfway persuaded.

If you are within the sound of my voice, have been admitted for more than two years and will be in town on the evening of March 1 or March 2 you can sign up by emailing the Moot Court Board at buffalomootcourtboard at gmail dot com.

Walking over to judge last night's Mugel rounds I thought about tax law, trying to get myself in the right head. Tax is what UB used to be known for, and was, actually, the only upper level required course. The dilemma back then was who to take: there were three choices, and each had merit. Bill Greiner, who later went on to become president of the university, taught a section that was popularly known as "Tax for Poets". If you were utterly cowed by the notion of tax, his class was a good choice. Ken Joyce, a jovial Irishman from Boston was the middle road: a leading scholar in the field, Professor Joyce was (and remains) a great favorite with the students-- personable, funny, and a great explainer. If you were a serious tax jock, though, you opted for Louis DelCotto's class. Professor DelCotto and Professor Joyce taught both Tax I and Tax II, and beyond that lay DelCotto's Corporate Tax, a heady realm where only the most dedicated acolytes dared venture. Although he was a stimulating and lucid lecturer, it was understood that the people who took Professor DelCotto's class were serious about the field, likely to go into it, and uncowed by his reputation as a tougher grader than Professor Joyce. He did not suffer fools, but could be patient if he saw that an effort was being made.

He was a hell of a guy, Professor DelCotto, dead nearly a year now. I knew that Tax was never going to be something I would ever be able to do, but since he was one of the superstars at the school, I figured I should sign up for his section. "Nobody ever did as well in my class understanding it as poorly as you did," he told me once. He meant it as a complement, and I took it that way. I was through with Tax, but I was a student representative to the faculty and we had occasion to hoist a few from time to time. Listening to his lectures, I thought last night, was like watching Penn and Teller. He could show me the trick, and I'd be amazed. Then he'd show me how it was done, and I'd be impressed-- but I would still never be able to do it myself, or probably even be able to explain it.

With the benefit of one round behind me, and a journal article I'd found, I felt like I had a handle on the problem last night. Professor Joyce's bench brief was a good example of his pellucid exposition, and I found myself actually thinking, for a moment, that I had a handle on the issues. Actually, I felt the way I used to in Professor DelCotto's class, and I remembered what he'd told me about my Tax chops. Sitting here writing this, I'm not so clear that I could describe for you what the hell the case was about. The taxability of contingent fees in non-bodily injury cases is all I remember, and Qualified Settlement Funds. Lou DelCotto could make an elephant disapear, then show you the mirrors, and the trick was equally impressive either way. Either way I just find myself sitting there thinking, "Huh. Elephant. No elephant. Elephant. No elephant".