Super Lawyers
William C. Altreuter

Tuesday, October 29, 2013

To a CLE yesterday in the WDNY: "Which Court? State or Federal and Why? Selecting Your Jurisdiction". Judge Pigott was one of the presenters, and unsurprisingly was insightful, but most of it was "State court litigators walk this way, and federal court litigators walk like this," you know? There was a hypothetical about an non-compete case, and everyone was very vanilla, so I said (because I'm an idiot), "Isn't the real difference in the outcome the client wants? If I'm the plaintiff, and I just want the faithless ex-employee to quit it, I'll take it to state court-- but if my client tells me that they want to grind the guy into the dirt, of course I'm going to federal court. My client isn't going to care about posting a bond, and the discovery costs are going to crush the defendant. I really hope someone tells me I'm wrong." Nobody did.

The reasons for this would actually have made for an interesting presentation. Judge Pigott had pointed out earlier that only 4% of litigated cases are heard in federal court (on a national basis) and of course that's because state courts are courts of general jurisdiction. Federal courts are courts of limited jurisdiction. Judge Pigott's advice was to approach cases like a sport: when you are playing a game you don't think, "Hey, I'm following the rules, how come I'm not winning?" and that a lot of people approach litigation as though the procedural rules are what matters, rather than the merits. Of course, that's always been my reason for going to federal court, and sometimes it works-- but the reason it works is because federal court judges have less discretion than do their state court counterparts. Federal court is far more rule-driven, which tends to mean that there are fewer points along the process to halt, or even slow down the process. It grinds forward, inexorable, bloodless. If a client comes to me, as they do, with a TRO, and I see that it's in federal court I know what the conversation with my adversary is going to be like: "Hi. I'm holding some papers in the ABC v. XYZ case. The rules say we should talk, and I'm wondering if you'd like to talk about the path out, or if you just want to talk about scheduling and disclosure issues." If it's someone I don't know, the answer is going to be terse: I have closing papers ready if your client wants to cease and desist, and pay the liquidated damages and attorney fees." Sometimes it will be someone I know, and then what I'll get is more along the lines of, "Sorry, Bill. My client wants to see hair on the walls."

Now, I'm not saying that my client-- a moron, who would have been spared a lot of agony, and even more money-- deserves much sympathy. He signed the non-compete, probably without talking to a lawyer, and maybe without even reading it. He eventually got around to reading it, maybe, and cooked up an argument in his mind about why it shouldn't be enforceable-- frequently this is a sophisticated piece of reasoning that boils down to, "It's not fair." He didn't consult with counsel at that point either, and now he is in the soup. That's not my point. All I'm saying is, the kind of soup, and the temperature of that soup, and the issue of whether this guy is going to be eating soup served out of the back of a church for the rest of his life depends a great deal on forum selection. Somebody should mention that.

Sunday, October 27, 2013

There are quite a few other things I want to get to writing about, but having just learned that Lou Reed has died I'm finding it hard to focus on anything other than that. There are a lot of us who, at some moment in our lives, believed that our lives were saved by rock and roll, and Lou was the one who wrote a lot of the rock and roll that saved us.

Wednesday, October 23, 2013

I volunteer as a judge for a lot of moot court/mock trial completions. In part I am motivated by selfish reasons: the faculty advisory for the Pre-Law program at Buffalo State furnishes my Discovery class with students to role-play witnesses, so there is a mutually beneficial quid pro quo. In part I do it because I feel as though lawyer training is a component of professionalism. But mostly I do it because it's kinda fun. It's fun because it is a sort of teaching, which I enjoy; and it's fun because the problems (more so in the Moot Court setting) are typically topical, interesting constitutional law issues with which I would otherwise never be engaged. So, yeah, I'm a law geek. This year Buff State is fielding a moot court team for the first time and I'm helping work with the students one night a week.  Their problem involves a Fourth Amendment issue (is tracking a suspect who has disabled the GPS on his phone by using the phone's location relative to cell towers a 4th Amendment violation?) and a Presidential Powers question (can the President order the indefinite detention of a US citizen suspected of terrorist activity when the subject is arrested on US soil?). Somehow I have also found myself elevated to judging the quarter-finals of UB's Desmond Moot Court completion, which is the law school's means of selection members of the Moot Court Board. This problem, which is 66 pages of light reading, even before you get to the case law, also has two pieces, one about the President's recess appointment power and one about whether corporations can invoke the protections of the Free Exercise clause of the First Amendment.

So, fun for me, but this morning as I was on my way into work I mused a bit over the value of the exercise. I am deeply troubled by the current crisis in our glamor profession, and feel ambivalent at best about engaging in activities which encourage undergraduates to attend law school. There are a half-dozen of us coaching the two Buff State students, and although these two men seem bright and hard working they would be much, much better off if they were planing on being bright and hard working in some other sort of job. I've made no secret of this in my conversations with them, and have gotten nowhere, so now my job is to help them accomplish as much as they can in their competition.

My law student problem is a bit different. They are already screwed, so my question with respect to my involvement with them is whether it makes any sense at all to have them arguing complex questions of constitutional law. Wouldn't it be better if they had to argue an appeal arising from a knotty CPLR issue, or a business law problem? Actually, I think not. There is a movement (there has always been a movement, I guess) to make law school more "practical". There is value to that, but something profound would be lost if we moved away from the notion of law as a learned profession and towards becoming legal mechanics. Lay people may have opinions about the scope of the President's Article II powers, but lawyers should know and understand them, even if we will never have to confront an Article II issue in the course of a custody dispute or a DWI plea.

Monday, October 21, 2013

I once asked an oncologist why chemotherapy medications were so expensive. The answer he gave (development costs, blahblahblah) was so clearly wrong that the only possible conclusions were that he  didn't understand the first thing about economics (possible, but unlikely), or that it was a topic that he had decided to not think about, resorting to the pat answers the drug industry hands out. The correct answer, of course, is that cancer drugs are expensive because the manufacturers can charge what they like.

Friday, October 18, 2013

Happy Birthday Chuck Berry!

Monday, October 14, 2013

Of all the chores I hate (and I'll be honest here, I hate them all) perhaps the category I hate the most is yard work-- and the yard work that I find the most unpleasant is raking leaves. A. claims that gardening is one of her hobbies, but apparently leaf-raking isn't gardening, so it falls to me. It is a chore that cannot be deferred with any success, particularly in our backyard, which features a Black Walnut tree. Black Walnuts are, literally, poisonous. Their roots are toxic to the surrounding vegetation, and so too are their leaves. The leaves themselves are abundant, and decay into unrakeable mulch almost instantly. Fall in Buffalo consists of a brief period of pleasantly clement weather followed by a series of torrential rainstorms, then Halloween, then snow. Sometimes Halloween and snow are concurrent. What that means is that it is imperative to get the leaves raked, and keep them raked, even though the weather is so nice that there are a million other things to do that would be preferable to the worst chore of the worst type of chores. Hell, even watching a Bills game would be preferable. To add insult to the entire process, the damn trees continue dropping leaves right in front of you as you rake. Lawn mowing is no treat, but at least the grass doesn't immediately regenerate to ankle length. A raked yard is simply a new canvas for the Black Walnut and its pals, and they approach it with the same enthusiasm as a juvenile delinquent with a Sharpie approaches a factory-fresh subway car. Like King Canute I am powerless.

Thursday, October 10, 2013

Congratulations, Alice Munro, 2013 Nobel laureate! First Canadian to win the prize! I didn't see that coming, and applaud the choice.

Wednesday, October 09, 2013

Lost in all the discussion about the shutdown and the debt ceiling and who or whether there should be negotiating is a simple, stone cold fact: the economic theories that the Republican Party is looking to enact are demonstrably false. Not even false in the political sense that the Republican Party lost the election-- false in the sense that they are bad economics. It's like arguing with Otto from A Fish Called Wanda. "Apes don't read philosophy". Yes they do, Otto. Apes read The Road to Serfdom, just like you did.

Tuesday, October 08, 2013

Outside Counsel has just learned that Professor John Hoey has died. He was a class act, and one of the professors whose influence has marked me for most of my life. The first Shakespeare class I took at Geneseo was with Professor Hoey. One of his traditions was to have the members of his class come to his home once a semester, for sherry and biscuits. As I recall I took two other courses with him-- Early and Later English Renaissance. I thought I'd related this anecdote here before, but I can't find it just now, so we'll recall his memory once more. Professor Hoey was a thoughtful, gentleman who took his role as professor seriously. Once you were his student you were his student for life, and that meant that he followed your academic career, even if you didn't know it. At the time I had a careless way with spelling, and this grieved him a bit. At the end of my senior year I was wandering around Wells, where his office was, looking for the grade posting for something or other. I hadn't had a class with Professor Hoey for probably a year, but suddenly he appeared in front of me and invited me into his office. I was a bit surprised-- I didn't think of him then as the sort of mentor that I now realize he was, but I went in and sat down. "I understand you are going to the University at Buffalo to study law," he started. I smiled and acknowledged that this was so, expecting to be bathed in congratulations. "I feel I must tell you that although your work has always demonstrated strong analytical powers, your failure to attend to details-- in particular proper spelling-- will be an impediment to your success, and I hope you will address this deficiency." I stammered something-- I went to law school because I pretty much always had a response to everything, but he pressed on. "I'm sure you will be a capable lawyer, but carelessness has no place in that profession. Good luck. " We chatted a bit more-- he recommended that I make a point of visiting Toronto, and then our interview was over. I thanked him, and went on my way. I can tell you now that Professor Hoey was absolutely right, and that his advice was some of the best I ever got. He was telling me to sweat the details, and I've never gone wrong doing that.

I may or may not have known that he was instrumental in forming the Geneseo Rugby Club. Not my sport, but years later, when CLA attended the Athens of the Genesee Valley she did, and I'm happy that in a distant way he influenced two generations of Altreuters.

Monday, October 07, 2013

Excellent interview with Wes Anderson on the making of The Royal Tenenbaums

Thursday, October 03, 2013

Ladbroke's Nobel Prize in Literature odds. Adonis (14-1) strikes me as more of a longshot. I'm pretty sure that nobody has read anything that Joyce Carol Oates (6-1) has written in 20 years, and if you told me that it was all the same book, re-released every two and a half weeks, I'd believe you. Philip Roth (16-1) would have won by now if he was ever going to win. I'd vote for him, though. Thomas Pynchon's (20-1) chances go down every time he publishes something. It isn't going to happen this year for Cormac McCarthy, (too American) Salman Rushdie,(too much of a pain in the ass) or Margaret Atwood (Doris Lessing won hers)-- each 40-1. Don DiLillo is 40-1. His best book was about baseball, and his second-best was about Lee Harvey Oswald. Why would the Nobel Committee be interested in either? Bob Dylan is 50-1, and if I were in the UK right now I'd take a flutter, but only because it would be more fun to do that than to take the £10 bob note and tear it up. Frankly, I'm stumped.

Wednesday, October 02, 2013

A. pointed this out to me last Sunday, and I feel like it must be the greatest NYTimes wedding announcement of all time. She is a former sex columnist for the New York Press, with a MFA from Columbia. He is... a clown. You wonder why her parents would want an announcement in the Times, but you can't deny that it seems newsworthy. I only wish that the photo had the lucky groom in full-on clown makeup, but even without it was able to pick out the right announcement on the page. In any event, the reasons for the couples' mutual attraction are certainly obvious, and Outside Counsel wishes them the best.

It has been a while since I've read the New York Press, but back then it was a weekly alternative paper that tried to distinguish itself from the Village Voice by being somewhat right wing. Of course, "conservative" in the late 80's-early 90's meant something different than it does now, when it means "unhinged". "Conservative" in New York has typically meant something more along the lines of "Go away, squeegee guy," rather than, "Burn Washington to the ground!" Even so, being the sex columnist for a publication like that must have been a wearying chore. Rudy Giuliani's wife writing and asking what would be a nice housewarming gift for the mayor's gay roommates, complaints about limo drivers snooping on backseat activities, you know, that sort of thing. How liberating it must feel for Ms. Sellars to come home to a rousing evening of clown sex. Having your partner squeeze your breasts and say "Ah-Roo-Gah!"-- that never gets old. 

Tuesday, October 01, 2013

From Slate, this chart shows the percent of workers furloughed, by agency.
"Hardest hit by the shutdown are NASA, the Department of Housing and Urban Development, the Department of Education, the Environmental Protection Agency, and the Securities and Exchange Commission. These agencies and others have basically gone on life support, with nine out of 10 employees furloughed, according to the Washington Post.
"The effect of the shutdown on the Department of Veterans Affairs and the Department of Defense is comparatively slight, with only about one of every 20 workers furloughed in each.
"The Federal Reserve and the Postal Service will continue operating because they are self-funded agencies, and the State Department has the funding to operate normally and issue passports for a limited time."
The court system can apparently limp along for the next ten days or so.

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