Super Lawyers
William C. Altreuter

Friday, October 29, 2010

Alan Bedeko, a fellow Spree writer and an entertaining fellow generally, gets his props from the New York Observer here. It is impossible to know if Carl Paladino might have been able to channel the current dissatisfaction with Albany and the national disenchantment with whatever it is that people are so pissed off about into a surprise win over Andrew Cuomo; but there is no question that the story Alan broke effectively dashed whatever chance Paladino might have had. (Why didn't it hurt him in the primary? I suspect because it was under-reported in the NYC press. People didn't know about it. Also, Rick Lazio ran a lackluster campaign that failed to mobilize his base. Paladino voters are -- or were-- motivated.)

I'm happy for Alan, but I'm also curious about how this whole thing came about. Buffalo Pundit is a must-read, but how did this scoop come to Alan? Obviously someone on Paladino's email list was troubled enough by the foul and offensive emails to pass them along-- but how did it happen that Alan was the only one to run with the story? If I had material like that and were so motivated I'd get it into the hands of every media outlet I could.  I'd send it to Bob McCarthy at the Buffalo News, and to ArtVoice, and to the television reporters that cover politics. I'd send it to the news director of every radio station. What I wouldn't do would be to start with a blogger. Of course, maybe Alan's source had a preexisting relationship with him, and maybe whoever it was passed the material to Alan because of that relationship, or because Alan was able to provide adequate assurances of confidentiality, but it seems to me equally likely that Bob McCarthy would have protected his source. So why did this story break on a blog? Did members of the traditional media have a shot at it and back away? I'll bet there's a good story there.

Thursday, October 28, 2010

Good article on the current state of National Public Radio. I'm put out with my local outlet: I was on the Advisory Board of WBFO for a few years, and I believed that they were doing good work back then. Lately however there has been a trend towards repetitious and unimaginative programing-- Car Talk and Wait, Wait three times a week? On Point and Fresh Air twice a day? C'mon! As McKibben notes: "There are public radio stations so hidebound that they run the not-that-hilarious Car Talk twice each week. It’s a waste of the precious hours in the broadcast day to repeat the program, and it’s not a good sign for the future that program directors aren’t taking more chances. If they’re not careful, NPR could wind up without a farm team of experienced new program makers, and with the same demographic problem now crippling public television (to see what I mean, check out your public TV pledge drive and try to imagine what age group they’re appealing to with overweight doo-wop groups squeezing into sequined suits). Sound Opinions is as good a barometer as any; if your local public radio station isn’t airing it, they’re not trying very hard."

(All that said, this morning's piece on the current arts funding crisis in Erie County was excellent.)

Even the flagship programing produced by NPR could use a little rehab. Morning Edition hasn't been the same since Bob Edwards left, so now I listen to him on satellite radio. It means I'm missing local news coverage, but if what that amounts to is stuff like Rich Kellman's 4th Grade report about the little girl who told Lincoln to grow a beard what am I really missing?

Wednesday, October 27, 2010

More for the Perils of an Elected Judiciary file. Outside Counsel friend Dan Kohane wrote this about the politicalization of the judicial races in the Eighth Judicial District. Briefly, it had been the custom in recent years for the local Democratic and Republican committees to cross-endorse sitting judges, but this practice was abandoned this year. Apparently the Republicans were excited about Carl Paladino and lost their heads, and as a result two very good veteran judges are in competative races. One is the former District Attorney of Erie County, the other is a sitting Appellate Division Justice, and the only Democrat appointed to the Appellate Division by (Republican) Governor George Pataki. As I have often said in the past, there is nothing about the job of being a judge that suggests that the democratic process is an appropriate method of selection, and indeed the opposite is more likely true. Judges aren't supposed to make the popular decisions-- they are supposed to make the correct decisions, based on the law, regardless of whether the decisions they make will be popular. In New York we try to insulate judges from the heat of popular opinion by having them sit long terms-- 14 years for justices of the Supreme Court. (Court of Appeals judges get 14 too, but are appointed by a merit-based selection system.)

I wish that New York was an outlier in all this, but sadly we are in the heart of the mainstream.  37 States have some sort of election system for judges, most commonly a "retention election". Judges are appointed, and then at some point they are put up for reappointment by popular election. In Iowa right now we have a good example of why this is a terrible idea: The Iowa Supreme Court unanimouslyheld that the constitution of the Hawkeye State compelled marriage equality, and now the three judges who are up for retention are the target of a campaign being waged by exactly the sort of assholes sane people should want to keep out of their sex lives.

The simple fact is that lay people are not qualified to evaluate judicial performance. Beyond that, judicial elections are an invitation for abuse.   All of the candidates have to raise money to campaign, and they raise it from the people who figure to be appearing before them. It's been an expensive ticket this go-round, but it always seems sleazy, even when it's just a hundred bucks. As bad as the rest of New York State government is, if I could only change one thing about it judicial elections would probably be what I'd pick.

See also, this.

Tuesday, October 26, 2010

My recent automotive misadventure has left us with a newer, fancier car and a bit of a dilemma.  The old Volvo was far from having acquired the broken-in look of an old tweed jacket, but it was on its way. It was in good shape overall, but it was clearly an older model, and its rear window testified to the higher educational aspirations of EGA and CLA. The Smith College sticker all by itself was a fine thing, but we also featured a Geneseo sticker from CLA's year and a half at my alma matter, and a sticker from Indiana University, where EGA had pursued graduate studies. Assuming that LCA elected to attend a school other than Smith we were looking forward to adding another; and it seems likely that CLA's graduate school program would have deepened our collection. By the time they were all through the Volvo would have been ready for leather patches on its elbows.

Now all of that is for naught, and we must rebuild. Of course we can replace the Smith sticker-- CLA has a semester and a half to go.  The question is, do we have to start our collection from scratch, or can we replace the stickers we had? I'm afraid I'm leaning toward scratch. The point of the rear window college sticker is, I think, to furnish a sort of annotation to a car. "Sure, I'm a ten year old beater," the sticker collection says, "but I'm a beater in the cause of our childrens' college careers". The sleek new Batmobile Volvo has no connection to the Athens of the Wabash-- EGA's degree was awarded nearly a year ago, and I doubt that we'll be driving to Bloomington any time soon.. Although I am a proud alum, Geneseo doesn't seem to have a place on our rear window either. I'm not even sure if we are entitled to a sticker from EGA's present school-- Indiana was arguably a reach, since we weren't paying for it. The one thing I know we won't be getting is a stick figure family. Or the Grateful Dead bears.

Monday, October 25, 2010

I'm sorry to learn that The Honorable Burton Roberts has died. He was a larger than life character, and he knew it.  My best Burt Roberts story is here, but I know there are loads more that are better-- I was about to leave the Bronx for Buffalo's palmy shores when he took over as Chief Administrative Judge, and of course I never did any criminal work when I was practicing full time in the City. Later on we had occasion to use him as a mediator in a couple of cases, and he was surprisingly good at that.

Wednesday, October 20, 2010

Via Lawyers, Guns & Money, this is indeed awesome.

Tuesday, October 19, 2010

Some of the food writing that I've been doing lately is here, and here.

Sunday, October 17, 2010

I finally got around to Ashley Kahn's "The House That Trane Built: The Story of Impulse Records".  It's not quite the history-of -jazz-as-told-through-the-labels that I've always wanted to read, but it's an engaging look at an interesting time and an interesting label.  Impulse is an odd label: it had indie taste-- avant-garde taste, really-- and major label money, by virtue of the fact that it was a subsidiary of ABC. (Check this set of Impulse album art.) Kahn elects to tell the story by describing the tenure of it's major producers, with occasional sidebar pieces about specific sides larded in.  I'm not crazy about this technique, which gives the book the feel of a long magazine article, but it is possible I'll find I like it better once the book finds its way onto my reference shelf. I'd have also liked more about the economics of the business.  ABC found itself going into the record business by reason of the antitrust prosecution that obliged NBC to divest itself of, inter alia, the Blue Network. More on that would have been good.  I'd also have liked to know more about the differences in revenue generated by the Impulse releases versus the pop and rock releases on the ABC/Dunhill side of the operation, then and now.  What's the value of the Coltrane catalog relative to that of the James Gang, or Steppenwolf (or Steely Dan)?

Saturday, October 16, 2010

EGA, Kansas City Marathon

"I have a friend who says that the most valuable thing you can do as an adult is read a good history or biography about the years just preceding and including your birth. That’s the blind spot in most people’s consciousness, and that’s the span that should be spotlighted."  From a Bookslut feature by Ben Greenman and Pauls Toutonghi in which they are reading and commenting on a book by each winner of the Nobel Lit Prize. (The quoted passage is from Greenman's letter on Samuel Becket.)

I mention it because it seems to me that this is precisely where my blind spot isn't. The reason Underworld, for example, resonated with me was that I think I have a pretty good handle on that time and that place. Maybe that is the personal peculiarity of someone with a shelf full of Art Pepper records, or maybe Greenman's proposition is simply wrong, and I'm inclined towards the latter theory. It seems to me that the education I received in my formative years was from teachers who were inclined to focus on the span of years just before my birth, and it seems to me that this was the time frame that the movies I grew up watching, and the books I ended up reading were all about.  Isn't the iconic work for Boomers Catcher in the Rye? Wasn't the George Lucas movie that got our attention American Graffiti?  Actually, it seems to me that our cultural blind spots are probably on the other side-- the period of time right after we are born up to, perhaps, age eight or ten. I'm never going to understand the Hiss case, or Nixon, and I only understand Miles Davis from that period because I followed this trail after the fact.

Friday, October 15, 2010

Paul Ceglia, some guy from Wellsville (and trust me, nothing good has ever come out of Wellsville. It's down on the Souther Tier, near that Nevada-y looking county.), says that Mark Zuckererg did some coding for him seven years ago, and along the way gave him a majority stake in "The Facebook". He brought an action in Allegheny County, which is in the exact middle of nowhere, and Facebook removed the action to federal court, on the grounds of diversity, and Ceglia's lawyers want to have the case remanded-- the Allegheny County seat is in Belmont.  Ceglia's lawyer is one of the top guns around here, which makes the whole implausible thing even more peculiar-- Terry Connors is not the kind of guy I'd expect to take on a case that looks like a pure shakedown. Then again, I wouldn't expect Terry Connors to argue that a donation to the Newark New Jersey school system establishes a jurisdictional connection to New York for diversity purposes.  I'd kind of expect Terry Connors to be cool with being in the Western District of New York. I think I'd like to know more about what's going on here.

I liked The Social Network-- it's stayed with me, and I'm a little surprised by that. I did a quick LEXIS check on Paul Ceglia v Zuckerberg & Facebook, U.S. District Court for the Western District of New York, No. 10-00569 to see if I could find the removal filing, but I didn't see it.  What I did see was a whole raft of litigation in which Facebook and Zuckerberg are defendants, and now I'm thinking that this is one of those situations where a there's a big target and a lot of people taking shots at it. Suddenly I'm a lot more sympathetic to the site that I've always been a little suspicious about.

I've been doing a bit of food writing lately. It  isn't an altogether new topic for me, but I'm struck by how much more difficult it is to do than I would have thought. The chief problem is, as in most writing, avoiding cliché, and this is further complicated by virtue of the fact that most of the time I am writing about things I've enjoyed . Snark is easier than describing something delicious. I had occasion in a recent piece (recently written-- it won't appear for a while) to describe the texture of something as like Playdough left on a window sill overnight. I was pleased with that, but my editor found it unnecessarily harsh, so I didn't get to use it in the piece, which is probably just as well, but it was a more-or-less factual description that had the added merit of being funny.  I'm not sure how to write about something that tastes great in a funny way-- food writing about good food is more wholesome and serious than that.

There are rules for this sort of thing-- The Association of Food Journalists guidelines are a formal set, but there are other considerations. It can't just be descriptive, for example-- there should be an anecdotal element, so that people can relate to the experience. When it is descriptive it should be descriptive-- it is tempting to say something is good because it does not have a flaw frequently associated with that sort of thing, but this is hard to do.  "The mozzarella was creamy" is dull; "The mozzarella wasn't rubbery" is damning with faint praise. Those are tough shoals to navigate when are trying to write something interesting about something simple.

Thursday, October 14, 2010

Okay, enough. Our language is filled with colorful expressions, but they deserve to be used properly and the Paladino campaign, among its other sins, is guilty of twisting useful turns of phrase out of their useful meanings. This first came to my attention during the now infamous, "I'm going to take you out, buddy," confrontation between Carl and NY Post reporter Fred Dicker. Paladino accused Dicker of being a "stalking horse" and a "bird dog" for Andrew Cuomo. As they say in The Princess Bride, " I do not think it means what you think it means." Per Wikipedia, "a stalking horse is a person who tests a concept with someone or mounts a challenge against them on behalf of an anonymous third party. If the idea proves viable and/or popular, the anonymous figure can then declare their interest and advance the concept with little risk of failure. If the concept fails, the anonymous party will not be tainted by association and can either drop the idea completely or bide their time and wait until a better moment for launching an attack." In politics in is generally used to mean a candidate who runs as a sort of surrogate for another-- Wesley Clark was said by some to have been a stalking horse for Hillary Clinton, for example.

A bird dog is a sandwich made of a chicken strip placed in a hotdog bun and typically topped with honey mustard, popular in  South Carolina.  No, wait, that's another kind of bird dog. Again, per Wikipedia, "a Bird Dog is a person who is paid a referral fee for locating and promoting business opportunities for someone else." Alternatively a bird dog is a free-lance baseball scout. In 1985 we were in the second row at Shea for opening day behind some people who knew Neil Allen from his Mets days. He jogged over and chatted with them for a bit about another player then in the low minors, and Allen mentioned that he knew a Bird Dog scout who might be interested in the player.  That's how "bird dog" is used properly.

Now comes Rabbi Yehuda Levin, erstwhile Paladino supporter, who says that Carl has “folded like a cheap camera” on the question of gay rights. Although the image is charmingly retro, what the rabbi means is that Carl folded like a cheap suit. C'mon people-- this campaign is too amusing to be spoiled by this kind of sloppiness.

UPDATE: I suppose the case could be made that Carl was accusing Dicker of being a stalking horse in the sense that he was reporting about Paladino's affair to see if that was a topic that Cuomo could exploit; and I guess you could stretch bird dog to fit that meaning too.  I think the word he should have used was "catspaw".

Wednesday, October 13, 2010

I just finished emptying out the car, a dreary task, and now I come upon this piece: Nine Quick Tips to Identify Clutter.  I tried to be pretty aggressive about keeping extraneous stuff out of the car, but I still filled two banker's boxes with stuff, and I left behind quite a bit of certifiable clutter.  Altoids boxes-- a half dozen or so. Broken bits of this and that. A single flip-flop. A toothbrush.

Tuesday, October 12, 2010

I think it is interesting that Carl Paladino can send (or forward, if you insist) emails degrading women and African-Americans and the reaction amounts to a shrug, but when makes a bigoted remark about gay people it is essentially game over. Is this because his crazy has had a cumulative effect? I think probably that's it, but it is odd.

UPDATE: Chances are he'd have danced around the issue before Carl stepped in it, but now Andy Cuomo is unambiguously promising to sign marriage equality. The problem is going to be in the legislature, but come to think of it, that's where the problem has been all along. 

Saturday, October 09, 2010

Car 1 ran a red light at Pearl & Tupper. Car 2, eastbound on Tupper, was spun around and ended up facing north on the opposite side of Pearl. I've had better afternoons, let me tell you. I am unharmed, but I fear for the Volvo. I got over the terror part pretty quickly, and although I was furious I managed to contain it, but I am still annoyed with the Buffalo Police Department. As soon as my car came to rest and I shook off the stunned sensation-- less than a minute, I'd say, and probably closer to about 20 seconds-- I called 911. (As I did so I watched the light, which had been green for traffic on Tupper the whole time, turn red.) My phone's call log reflects that this call was made at 3:00 PM.  I made three more calls over the course of the next hour and a half, and walked over to the precinct, a block away, before the cops arrived at the scene. This is incredible to me.  Was the Riddler on a crime spree downtown? What the hell, Buffalo cops?  Three drove by! (So did about four tow trucks, opportunistic bastards.)

When the cop who responded to the scene responded to the scene he (a) took no statement; and (b) failed to document the scene photographically or by observation. This is an intersection accident with a question of lights.  Scuff marks are significant. Statements are significant. Bernard Norman, who was lost and looking for the Peace Bridge, said to me when I climbed out of the car, "I didn't see the light". Over the course of the hour and a half that it took the cop to get to the scene this statement gradually morphed into, "It must have just changed". It's not a substantially better story, but I will bet a doughnut that neither statement shows up in the police report.

UPDATE: The police report reflects that the other guy blew the light. Doughnuts for everyone!

Thursday, October 07, 2010

Vargas Llosa. Didn't see that coming.

Wednesday, October 06, 2010

Last year New York amended its General Obligations Law, adding section 5-335, "Limitation of non-statutory reimbursement and subrogation claims in personal injury and wrongful death actions". It provides, inter alia, that "[w]hen a plaintiff settles with one or more defendants in an action for personal injuries...malpractice, or wrongful death, it shall be conclusively presumed that the settlement does not include any compensation for the cost of health care services, loss of earnings or other economic loss to the extent those losses or expenses have been or are obligated to be paid or reimbursed by a benefit provider, except for those payments as to which there is a statutory right of reimbursement. By entering into any such settlement, a plaintiff shall not be deemed to have taken an action in derogation of any nonstatutory right of any benefit provider that paid or is obligated to pay those losses or expenses; nor shall a plaintiff’s entry into such settlement constitute a violation of any contract between the plaintiff and such benefit provider."

The idea is that your health insurance company shouldn't be allowed to come after your personal injury settlement to recoup the benefits it paid out (unless there is a specific statutory or contractual right to do so). In HealthNow New York, Inc. v. The State of New York (pdf file) a carrier tried to enjoin the enforcement of this GOL provision, arguing that it is precluded by ERISA. (It might be precluded by some other things too.) The Western District of New York bounced the case on jurisdictional grounds (11th Amendment-- damn!) and didn't reach the merits. It's worth mentioning for several reasons. First, it seems pretty obvious that the industry is bing unusually aggressive about this issue.  An action for injunctive and declaratory relief wouldn't have been the way I'd have suggested attacking the issue. Bring an ERISA action against some of the poor bastards who paid a health insurance premium, got hurt, and recovered some dollars would be the way I'd do it. The GOL would be raised as a defense, and the preemption issue could be argued that way. I have to think it would be less expensive. (I also wonder why this was in the Western District-- shouldn't actions against the State of New York be in the Northern District, where Albany is?).

We haven't seen the last of this question.

See also, Rink v. State of New York. Prior to the enactment of the statute the First, Second and Third Departments had held  that bringing an insurer into the pending tort litigation would create an adversarial relationship between the insurer and its insured and detrimentally complicate the litigation. They didn't allow it. The Fourth Department held that the insurer had the right to intervene in the pending tort litigation. The amendment to the GOL doesn't speak to the right of an insurer to intervene in an action-- it only applies to situations where the matter has settled. In Rink the court noted that once a tortfeasor knows or should know of an insurer's right to subrogation, the insured and the tortfeasor cannot extinguish the insurer's claim without the insurer's consent, and that the GOL amendment only applied to settlements. To the court what this meant was that whatever rights the insurer might have against its insured's prospective recovery were not affected. Because the action underlying Rink was a non-jury matter pending in the Court of Claims, the court permitted intervention to the extent of allowing the insurance company to introduce evidence of the amount of medical and health expenses it paid.  This is really a non-answer, since the circumstances were so narrow.

Monday, October 04, 2010

This year's Rock and Roll Hall of Fame nominees. I hate this institution, even though I love many of these artists. By what metric, for example, does Tom Waits qualify? He is an inventive, genre expanding artist to be sure, but apart from the Eagles' cover of Old 55 and Rod Stewart's of Downtown Train what has he written that was a hit in any meaningful sense of the term? Christgau gave A- ratings to 4 out of the 21 releases he reviewed; by Christgau's lights Waits has about a 3.25 cumulative average. I'd have to say I think that's about right. Alice Cooper? The nomination appears to be for the guy, not the band, which is too bad. There are some solid songs in the catalog, but be honest, when was the last time you pulled out Billion Dollar Babies and played it straight through? I'm betting in was some time in 1982. Alice is, I guess, an influence for Marylin Manson, and maybe the Insane Clown Posse, but his shtick was tired when I was in 8th grade, and  Screamin' Jay Hawkins did it first and did it better. Chic, sure. Neil Diamond? If you insist. He's as out of place here as he was at the Last Waltz, but who wants to argue with all those Red Sox fans. (Jim Rice is over-rated though) Donna Summer? Absolutely. Dr. John-- okay. Joe Tex was no Wilson Pickett, and by that criteria is probably closer to Jerry Rice than to Carl Yastrzemski. Donovan? No. Laura Nyro is a close call, but I guess a tie goes to the runner. Bon Jovi? Bon Jovi? See, this is what I'm talking about.

Sunday, October 03, 2010

To The Social Network last night, not a lawyer movie, but worth mentioning in this context because lawyers provide the framing device- a big portion of the story is related in flashback as the characters are questioned in depositions. The deposition scenes are closer to being accurate than that sort of thing usually is, particularly when people get exasperated, but the lawyers are just suits for the most part. The movie "gets" the internet, but it doesn't really get the lawsuits. I can't say if it gets Harvard or not, but in a way that's the point-- being on the outside looking in is what it's all about, and that part is spot on.

Saturday, October 02, 2010

I hadn't realized that Carl Paladino owned the land the Seneca bought to build the Buffalo casino. Nothin' wrong with that, per se. It's just interesting. Wayne Barrett is shocked, shocked, that Paladino's campaign staff is full of dubious characters, but that's just Village Voice stuff-- nobody cares about that.

Nobody cares about the crazy, either.  Getting up in the grill of a NY Post reporter? Bring it on, baby!

I've been thinking about some of the losers in this season's political follies. Back before Carl announced Erie County Executive Chris Collins was said to be toying with the idea of a run at the governorship. That ran aground when was reported to have said to a woman looking for a seat at the State of the State address,
 "I’m sure if you offer someone a lap dance, you can find a place to sit." Poor Chris, he didn't realize that he'd have to double down on the crude, offensive humor if he wanted to make it big.

Another thing that's been interesting this season has been the activity on the third party lines. Jim Domagalski was a pretty successful Republican Party chairman in Erie County, and must have figured that running for state senate would be a kind of victory lap. It didn't work out that way.  I like Jim, although doubt that there is a single political issue that we agree on. Oddly enough, he didn't lose because of Tea Party craziness. Instead, it looks like he lost because the people who've supported Darth Volker all these years were bent out of shape when ol' Darth was pushed to the curb. They persuaded former Erie County Sheriff Pat Gallivan to enter the primary, and Gallivan won in a walk. Hilariously, Jim remained on the ballot on the Conservative and Independence lines, which meant that there was going to be a four-way race, and the seat, which has been Republican since the Earth cooled, might fall to the Democrats. Jim pulled out to try to prevent that from happening, and in order to do that the Republicans have had to nominate him for a judgeship, as they did with Rick Lazio. It's nice that they've got the ballot space, and it would be hilarious if  Jim Domagalski actually were to be elected in someplace like the Bronx.  He's not telling where he is going to appear on the ballot, presumably to avoid that fate.

Friday, October 01, 2010

Plaintiffs must provide access to their social media sites-- Facebook, MySpace-- regardless of the privacy settings the plaintiff has elected. Romano v. Steelcraft. This is huge. Bob Kelner has the plaintiff, and says he may go up on it. The argument he makes by analogy is not bad:

"We feel that there is a huge difference between what an individual puts on the electronic media for public consumption and what you put on the media that is designated [as] private." What occurred here was equivalent to tearing down curtains blocking the view into an individual's home. "This to us is your living room or bedroom electronically."

I'm not so sure I buy that, with all respect to Bob. What it is more like, I think, is overhearing a conversation. That's how Facebook is used, after all. People chat, share photographs  and whatnot, and it is all done in a  forum that is, at most, semi-private. It's about as private as the supermarket actually-- I'd say that the vast majority of the people on my friends list have never seen my living room.

I also think that the argument about the expectation of privacy is flawed generally in this context. This is much more akin to surveillance activity. Naturally if the defense comes into possession of a plaintiff's Facebook statements those statements must be exchanged-- in fact, this is the practice we have followed. There is a somewhat better argument for the privacy of the messaging and chat functions of this form-- that sort of thing does appear to be intended as private, and is more like email. The decision doesn't speak to this, and I'd say it is an open question.

Also-- MySpace? Who uses MySpace?

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