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 . . .

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.

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.