Friday, October 27, 2006

The Annual Western District Federal Court Dinner

was a resounding success. We need to enact a Local Rule that mandates that venue (Terry Hills) for all future dinners. ABL never had such a good time in Batavia!

Terry Flynn made a great speech that made me proud to practice in WNY (not that I needed a speech for that, but it was motivational nonetheless). I think that half the lawyers sped home with thoughts of qui tam dancing in their heads. We learned that the new courthouse is coming, slowly but surely, and that we hope to cut a ribbon in 2010. The Rochester annex, however, may not come for some time. Judge Arcara provided statistics supporting what we already know -- that the WDNY is the busiest court (per judge) in the Circuit and one of the busiest in the nation (#9). Our civil filings are up 37%! Judge Skretny discussed the successful ADR program, which has an 80% resolution rate -- far better than the 60-65% rate hoped for. The program will continue by expanding to the chambers of Judges Arcara and Elfvin.

I got to see many old colleagues and friends -- and met a few new people as well. I heard that the Rochester judges hold a Town Hall meeting similar to the "District Court Speaks" program in D. Mass. I hope to one day get such a program started in Buffalo -- and perhaps a combined Buff./Roch. program.

Wednesday, October 25, 2006

Deposition excerpt #46

Q: Would you normally sign a contract that contains language that confused you?

A: Oh, yes, sir.

Q: And why would you do that?

A: Because -- it's very expensive for us to get legal counsel for all of these various insurance contracts that come from various places . . .

Monday, October 23, 2006

Lord of the Deposition

When I was in law school, Lord of the Dance was popular. A friend of mine (who now works on Capital Hill) made this cartoon. At least this was better than the fake MPRE score that he tricked his roommate into thinking was real.

Sunday, October 22, 2006

Caveat lessor - vicarious liability returns?

In Graham v. Dunkley, 2006 WL 2596327 (N.Y. Sup. 2006) (click on post title for link to the opinion) the Supreme Court, Queens County, held that The Transportation Equity Act of 2005 ("TTEA") (which preempted state laws holding automobile leasing companies liable for torts involving the leased vehicle) was an unconstitutional exercise of Congressional authority under the Commerce Clause. Although all previous courts to have addressed the issue have held that TTEA preempts state laws like NYVTL section 388, Graham held that these decisions stopped their analysis at the Supremacy clause. Graham, on the other hand, held that TTEA exceeded Congressional authority under the Commerce Clause because the right to enact substantive tort legislation such as section 388 remained with the State under the Tenth Amendment. This case will certainly be appealed and followed closely by automobile manufacturers and leasing and rental companies.

ever feel like this at a deposition?

Thursday, October 19, 2006

Making friends with Rule 45

Clarence Darrow @ UB - the podcast

I spoke with fellow blogger Jim Milles from the SUNY Law School Library, who published this podcast of the event. Thank you Jim for your time and for attending a great, albeit intimately sized, gathering.

Episode 049: Clarence Darrow and the American Inns of Court
Thursday, October 12, 2006
Playing time: 30:47

Pictured above are Judge Pietruszka, Darrow and ABL

Sunday, October 15, 2006

WDNY Daubert ruling

In Pless v. Cleveland Wrecking Co., 2006 WL 2690074 (W.D.N.Y. Sept. 18, 2006), Judge Schroeder held that workplace safety experts Ernest J. Gailor and Thomas A. Scime could opine that the alleged manufacture of a path would violate certain Industrial Code Regulations, but that they could not opine that the alleged violations (1) violated Labor Law section 241(6) or that such alleged violations "caused" the Plaintiff's injury. In a subsequent unpublished in limine ruling, Judge Schroeder further held that the liability experts could not opine that the alleged method of construction violated the subject Regulations -- granting Defendant's limited request for consideration of the previous ruling that the liability experts could testify concerning "industry customs." Indeed, Defendant argued that such "industry customs" are not codified Regulations such as the Industrial Code (citing Judge Hurd's Zollinger decision, which held that a jury did not need expert assistance because it could apply the OSHA regulations to the facts of the case).

Judge Schroeder's September 18 ruling also held that Donald Zimmer, a union bricklayer with 47 years of experience, could not testify that one of his former students would have completed the bricklaying apprenticeship or that she would have become a successful bricklayer. The court did hold, however, that the bricklaying expert could testify as to his observations of the Plaintiff while she was enrolled in the apprenticeship program for three weeks and testify as to his impressions of her candidacy.

Thursday, October 12, 2006

Clarence Darrow: the Search for Justice

The Desmond Inn of Court held its October meeting at SUNY Buffalo Law School at the Letro courtroom. The meeting featured actor Gary Anderson portraying Clarence Darrow in a one-man play entitled: "Clarence Darrow: the Search for Justice". Read more at and

Anderson was phenomenal. Although I knew relatively little about Darrow beforehand (the fact that he was a great attorney and was involved with the Scopes Monkey trial was about the extent of my knowledge sadly. After seeing Anderson's play, however, I feel as though I understand Darrow, the man and the lawyer. I had no idea that he started out doing "products liability work (harness defect cases) in Astabula, Ohio. Nor did I know that he worked for the railroads and that he felt that it was a moral compromise because he preferred to represent the "little guy." I was also impressed with the "warts and all" presentation. This infamous American lawyer was also a flawed character who was hubristic (aren't most great trial attorneys?), a womanizer, and a poor father/husband who traveled a lot and, even when he was home, he really was not there.

The play also provides insight into several of Darrow's greatest trials. It was a memorable evening to be sure. A heartfelt thank you to Gary and Victoria (I am glad that you made it out of WNY before our little snowstorm).

Monday, October 09, 2006

All dressed up with somewhere to go!

Now that is a "short plain statement"

Thursday, October 05, 2006

A skit so nice, I had to post it twice

Sunday, October 01, 2006

2d Circuit discusses oral modifications

In Seneca Beverage v. HealthNow, the 2d Cir. held that contracts that require modifications to be signed writings may nonetheless be modified orally under certain circumstances -- namely where (1) there is partial performance or (2) reliance -- where the subsequent reliance or performance is unequivocally based on the oral modification.

Click on heading for link to case.