Staying on message….

October 13th, 2014

I’m not a big fan of arbitration agreements. I’m not talking about a voluntary agreement between parties to litigation to resolve an existing dispute or lawsuit by submitting it to an arbitrator or panel of arbitrators in lieu of litigation. No, I’m talking about pre-suit, pre-dispute agreements whereby parties agree (or are required to agree as a condition of doing business) to forego any remedy in court, in favor of a panel of hired guns, who may be industry insiders or—worse—paid by one of the parties. These kind of agreements require a foresight that most people simply don’t have, and anyone who says that arbitration is always a less expensive, more expeditious solution than litigation is full of it. It just isn’t true. That’s why I’m a little torn about last week’s decision by the Fourteenth Court of Appeals in Mission Petroleum Carriers v. Kelley.

In that case, one David Kelley was seriously injured in an 18-wheeler accident while employed by Mission Petroleum. Kelley wound up in the hospital, hooked up to a morphine drip and—according to his own later testimony—basically incoherent and unable to give legal consent to anything. It was during that time that a Mission representative showed up at his bedside to enroll him in Mission’s Health & Safety Plan, which would pay for his medical care, rehab, wage replacement, etc., presumably as a stand-in for workers’ compensation. The Plan also contained an arbitration provision that covered suits for injury of the kind Kelley had suffered. Kelley signed the agreement and Mission started paying benefits.

Fast forward several months and Kelley filed suit against Mission and a third party for his injuries. Mission moved to compel arbitration under the terms of its agreement but was denied. Mission then took an appeal to the Fourteenth Court.

Kelley argued to the Court that the arbitration provision was unconscionable and shouldn’t bind him because he was too high on painkillers to know what was going on when he signed it. In fact, he said he had no recollection at all of signing anything when he was in the hospital. But Justice Sharon McCally, writing for the appellate court, observed something that he should have noticed, namely, someone was sending him weekly checks of $935 and paying a bunch of his medical bills. Some of those checks even came in after he had already filed suit against Mission. The Fourteenth Court reversed and remanded the case with instructions to the trial court to send the parties to arbitration.

Much as I dislike arbitration as a cookie-cutter solution, it’s easy to see what motivated the Court here and hard to say it got it wrong. In for a penny, in for a pound: if you accept the benefits of a contract, you accept its responsibilities, too. Kelley couldn’t just keep on cashing those checks without asking where the money was coming from. Maybe if he’d at least refused additional payments once he was out of the morphine fog, the Court would have gotten to Mission’s behavior, which seemed a little sleazy. But Kelley just didn’t act like someone who had no idea he’d signed on to an agreement to receive money, and that counted for everything. Don’t contradict your words with your acts. It’s a good lesson to keep in mind for lawyers and non-lawyers, alike.


Zero tolerance

September 15th, 2014

Late last week, the NFL indefinitely suspended Baltimore Ravens running back Ray Rice for domestic violence in a showing of its “zero-tolerance” stance. A security video of the incident in which Rice clocked his then fiancee in a Las Vegas hotel elevator was obtained by the website TMZ, and it is a sickening thing to behold. The league—which had previously suspended Rice for a paltry two games—then backpedaled and penalized Rice much more harshly. The indefinite suspension has led to Rice being released by the Ravens and has raised questions as to how much league Commissioner Roger Goodell’s office knew and when it knew it. (For his part, Goodell has claimed he never saw the video before last week, despite the incident having occurred much earlier this year.) It’s easy to question the truthfulness of that assertion, and many have and continue to do so.

Journalists and sportscasters who cover the NFL have been put in a difficult situation by this. When the same people you cover and who, thus, provide your livelihood are at fault, it’s a big step to criticize them. Access can be everything when it comes to doing the job. The truth is that this probably isn’t a job for former coaches and players who are used to talking about X’s and O’s, but punting this over to the “hard news” people isn’t the answer, either. The people who watch the NFL are also the ones that need to hear about this, and the surest way to get them to do that is by including it as part of NFL coverage. While sports news organizations have shied away from finger-pointing, a few individuals such as Hannah Storm and James Brown have stepped up at least to recognize the problem as a societal one, as well as a league one.

Nevertheless, the league can’t skate on this one. The figures may show that the league has no greater domestic abuse problem than American society, itself, but the NFL is, itself, a cultural leader. This violent game is, for better or worse, a part of the American fabric. It is, by a long stretch, the most popular sport in the country–nothing else even comes close–and that gives it a special responsibility. From August through January, NFL football is ubiquitous and inescapable. It doesn’t just follow society, it helps create it. You don’t get to play a part in creating a culture and then disclaim any part in its faults. As a cultural leader, the league has a responsibility to that culture, as well as to its own fans, 45% of whom are women. If nothing else, the notoriously image-conscious league should be looking to demonstrate its concern for nearly half of its own fan base.

The league can do one of two things here. It can step up and join a serious conversation about violence against women—with real enforcement against transgressors—or it can hide its collective head in the sand and keep talking about a societal problem, without acknowledging its own role in creating it. Hopefully, it will choose the better path. The NFL glorifies violence on the field, gives massive amounts of money to young men who may be ill-equipped to handle it, and apparently avoids learning unpleasant facts that might change its behavior. I’m not saying Roger Goodell knew what happened in that elevator. I’m saying he had a responsibility to find out, and he failed horribly on that count. Sweeping this under the rug is no good. Society should have zero tolerance for that.


The Doctor is in

August 26th, 2014

When I was a boy in Scotland, I used to be riveted to the television every Sunday evening to see the adventures of my favorite hero—a man called “The Doctor.” I first encountered the Doctor in the early 1970s, when he was played by a gray-haired gent by the name of Jon Pertwee. Mr. Pertwee, may he rest in peace, will always be my first and favorite Doctor, but he’s far from the last. Because the role I saw him play was none other than Doctor Who, the central character of a low-budget though imaginative BBC series about the travels and travails of a wayward Time Lord, who spent his days rescuing humanity and any number of other civilizations from doom with his wits, his empathy, and his trusty (and sometimes, not so trusty) T.A.R.D.I.S. The Doctor was a superhero of the mind. He didn’t have strength or flight or any of that sort of stuff. He couldn’t turn invisible or turn someone else to ash. But he could think his way out of any situation. And that kept me coming back every Sunday. I couldn’t stay away. I needed my appointment with the Doctor.

But, as I got older, the Doctor seemed passé. He was something from my earlier days. Sure, it was fun to go back and watch some of those old episodes, but the feeling wasn’t the same. I knew everything. I didn’t need the Doctor anymore. The Doctor hadn’t changed. (Well, actually he had. Multiple times, actually.) I had.

Really, the question was whether the change was for the better. Was life better post-Doctor? The fact I’m writing this post, within a week of Peter Capaldi, the twelfth—or to my mind, thirteenth—incarnation of the Doctor taking his place in the canon, probably suggests the answer is “no.” The Doctor is an enigmatic character at the best of times, and Capaldi plays enigmatic to the hilt. His Doctor doesn’t care what you think of him—even though he does—and he’s thoroughly alien—even though he’s not. (Incidentally, I love Capaldi in the role.)

I came back to the Doctor. But why does the Doctor make things better? Because it turns out I don’t know everything. Because mystery is good. And the Doctor presents a smart mystery; an enigma that’s all wrapped up in a figure whose force of heroism isn’t strength or some kind of superpower, but empathy and intelligence and a belief in life. He’s a hero because he falls into it, not because he strives for it. And because he can be the one who’s needed when he’s needed. He’s the right man at the right time. And that’s all that any of us can hope to be.

The frenzy leading up to Capaldi taking over the helm of the T.A.R.D.I.S. has been a revelation. He’s been on a world tour with his co-star Jenna Coleman. Last year’s Comicpalooza in Houston had two major themes—Agents of S.H.I.E.L.D. and Doctor Who. The speculation as to what kind of Doctor Capaldi would be has been rampant, and I’ve loved every minute of it. After 30 years, my superhero—my hero of the mind–has conquered America. The Doctor is in.


Who is allowed to watch the Watchmen?

August 21st, 2014

Having employees can be a difficult thing and create all sorts of problems. A business wants to control how it is perceived by its customer base and by the public, and this has lead to a good number of recent accounts of job applicants being asked for their social media passwords as a condition of employment. It comes down to employers wanting to limit what is said about them and make sure it is all positive. As antithetical as that may seem to free speech, there’s nothing legally wrong with it. A private employer can make it a rule that you don’t badmouth them if you want to keep your job.

But the same doesn’t go for governmental agencies. It’s a little thing called the First Amendment. Where it says “Congress shall make no law . . .,” you might as well substitute “Government shall make no rule . . .” because both Congress and the U.S. Supreme Court long ago applied the First Amendment to local government entities through the mechanism of the Fourteenth Amendment and several civil rights statutes. This is the law of the land: governmental agencies don’t get to tell their employees what they can say about their employer, as long as they are talking about matters of public interest.

But someone please tell Harris County Sheriff Adrian Garcia because, apparently, he didn’t get the memo. According to a new lawsuit filed by Carl Pittman, a Harris County Sheriff’s deputy (and electoral rival to Garcia), the Sheriff’s office (HCSO) has a new social media policy that, among other things, prohibits any employee, through a use of social media, from causing “undue embarrassment” to the office or “damag[ing] the reputation” or—here’s the kicker—“erod[ing] the public’s confidence in the HCSO[.]” In other words, don’t say anything less than complimentary about us on Facebook, or you’re outta here because the public might not like us, if you do. Here’s Pittman’s federal court complaint, and here’s the HCSO policy.

Government employers have some authority over what their employees say about the agency. The U.S. Supreme Court, in a case called Garcetti v. Ceballos, held that government employees don’t speak as “citizens”—and, thus, lose First Amendment protection—when their speech falls within their usual job duties. In those cases, they are acting as employees, not citizens. That means that how you do your job is between you and your employer, even though your employer is the government. You need to toe the party line, just like any private employer would expect.

But the same thing doesn’t hold when you step outside of the employee’s area of responsibility. In a more recent case called Lane v. Franks, the U.S. Supreme Court held that, just because an employee learns facts in the course of his employment, that doesn’t mean those facts are part of his job duties. And Lane would seem to make the HCSO social media policy highly questionable. That policy is not just about the internal workings of the agency. It’s about the public perception, as expressed by the people in the best position to inform that perception, and the HCSO wants to make sure the dirty laundry doesn’t get hung out.

Nevertheless, don’t think that Garcia’s office is completely unhip to what all you kids are doing on that internet thing these days. The policy also notes that “HCSO endorses the use of social media for pre-employment background investigations, crime analysis, situational assessments, criminal intelligence development, criminal investigations, internal affairs, marketing, recruiting, and community engagement.” So, social media is fine, as long as you don’t criticize us. Otherwise, it’ll get you fired.



Unintended consequences

August 15th, 2014

“I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” – Abraham Maslow

As one who is frequently involved in cases dealing with civil rights—those Constitutional rights of free speech and personal integrity that are the basis of so much of our law—I have been shocked by the recent developments in Ferguson, Missouri. I’m sure there’s little need to recap all that has occurred, suffice to say that protests over the shooting of a young, unarmed African-American man by a Caucasian police officer have caused tensions to boil over. Whether or not the shooting was justified is not the point of this post. The nature of the police response is.

Since the protests began, the local police have rolled out a variety of military hardware the likes of which are rarely seen here. Body armor, tear gas, machine guns, and armored vehicles have become the order of the day. According to a lot of people who should know—veterans of the Iraq and Afghanistan wars—some of this stuff wasn’t even that frequently seen in those hot spots. Add to this the confrontational, violent approach of the police forces, and it seems only to have escalated the situation.  A no-fly zone with a media blackout (complete with reporters being arrested) completes the ugly, ugly picture.

So where did all this come from? Well, the equipment is military surplus. The tools of combat that were intended for use overseas are now staying here. As the Department of Defense tries to stuff the genie back in the bottle, the hardware gets shipped to local police departments. And when you’re talking about city police departments trying to control drug cartels and heavily armed gangs, this might make some sense. But it’s a whole different thing when you’re talking about a crowd of citizens armed with nothing but outrage. Guns don’t quell feelings of injustice.

But the bigger question to me is not the source of the weapons, but the source of the will to use them. When did the streets of Ferguson, Missouri become the streets of Baghdad? And is there a connection? Because I think there is. In the days following the World Trade Center attack, drawing the sword became more important than figuring out the proper target. The rights of anyone and everyone took a backseat to drawing blood. Congress passed the Patriot Act, which gave the government all new powers to monitor its own citizens. A callousness toward rights anywhere creates a callousness toward rights everywhere. It’s an unintended consequence, and it’s happened before. Sending military-grade weapons to police forces that don’t need them blurs the lines between soldiers and cops; between those in real combat and those who are supposed to protect and serve.

In the modern era, the role of the soldier has certainly changed. Given the “peacekeeping” aspect of so much military action these days—making war, not on nations, but on particular figureheads—soldiers may wind up acting more like policemen these days. But the converse should not be so. We don’t need soldiers on the streets of our cities. We need respect for the rule of law—including those individual rights—and we need it from those wearing the badges as much as from anyone.


The NCAA “protection” racket

August 12th, 2014

Around three years ago, I wrote about a lawsuit brought against Electronic Arts for its use of the likenesses of collegiate athletes in its video games. Specifically, Sam Keller, a former quarterback for Arizona State and the University of Nebraska had brought suit against EA for its use of his image in its NCAA Football 2007 video game. Keller’s suit was consolidated with that of Ed O’Bannon, a former UCLA basketball star and the new name plaintiff, and ultimately, the case against EA was unsuccessful. The judge hearing the case, Hon. Claudia Wilken of the U.S. District Court for the Northern District of California tossed the case against EA on the grounds that EA did no more than exercise the rights granted to it in the license it purchased. To all intents and purposes, it was an innocent purchaser just trying to get things done. But that didn’t mean that the case was over or that there wasn’t still a villain of the piece.

Step into the box, everyone’s favorite punching bag, the folks who brought you the Bowl Championship Series and virtually everything else that sucks about modern collegiate athletics, the National Collegiate Athletic Association. Yes, welcome to court, NCAA.

NCAA Bylaw 2.9—headlined “The Principle of Amateurism”—states: “Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived.” Nothing wrong with that. The “student” comes first in the “student-athlete” designation. But then the bylaw fires of this whopper: “[S]tudent-athletes should be protected from exploitation by professional and commercial enterprises.” As has become continually clear in the course of the O’Bannon litigation, the NCAA considers “professional and commercial enterprises” to include just about every money-making enterprise except the colleges and universities making huge amounts of money off of their football and basketball programs and the NCAA itself. You can’t do that to our athletes. Only we can do that to our athletes.

According to the NCAA, paying athletes for the use of their likenesses amounts to exploitation, and, as a result, it is justified in preventing its member universities from paying any portion of revenues to its student-athletes. (If this is exploitation, my only question is “where do I sign up?”) In the course of trial, Judge Wilken appears to have been a bit skeptical about this explanation, and the proof came in her opinion issued August 8.

After acknowledging that there was some substance to the NCAA’s argument about maintaining an actual academic, as opposed to just an athletic, environment for student athletes and that players getting paid huge sums of money would probably hamper any effort to integrate them into the larger body of starving college students, Judge Wilken nevertheless held that banning any payment at all to students was not the least restrictive way for the NCAA to achieve its goals. It could still put out a quality athletic product and look out for the interests of student-athletes without preventing them from receiving any payment, at all. Nevertheless, Judge Wilken drew the line at allowing student-athletes to receive money for endorsements, holding that this proposal from O’Bannon and his counsel did not offer a less restrictive way for the NCAA to achieve its goals. So, in other words, a lot of the real money that athletes might make is still off the table.

It’s a victory of sorts for student-athletes, but it still leaves much of the paternalistic regime that the NCAA enforces in place. An open marketplace for student-athlete endorsements is, perhaps, not the best thing for the futures of those young men and women, (images of someone like Johnny Manziel lending his name to ads for Harrah’s casino or Rick’s Cabaret come to mind), but the suggestion that a 20-something who will likely be a multi-millionaire within the next few years is somehow unfit to determine where his own picture gets posted is troubling. With as much revenue as athletes generate for their institutions–and as much as the NCAA spends on lobbying and PR–the athletes shouldn’t be getting left out in the cold.


You tell them to do what?

August 5th, 2014

Comcast has been getting some electronic publicity for the wrong reasons, of late. First there was the recording of the latter half of a 20-odd-minute phone conversation between a Comcast customer and a “Retention Professional”—one of those guys whose job it is to beg, badger, and cajole you into not cancelling your service. Unfortunately for Comcast, the customer in this instance was Ryan Block, a tech journalist, VP of Product for AOL, and founder of gdgt—a website offering reviews of electronics and tech products that was recently sold to AOL. In short, Comcast poked a guy who knows what he’s doing when it comes to this internet thing, and he posted the recording on Soundcloud.

If you haven’t heard the recording, here’s a link. Warning: it’s a finger-nails-on-a-chalkboard-painful listen. Comcast’s rep becomes steadily shriller and more hysterical as he demands that Block explain why he would want to cancel “the number-one rated internet service.” But eventually he caved. When Block’s recording went viral, Comcast’s COO, Dave Watson, responded with an internal memo—leaked to the Consumerist—that makes clear that what happened to Block was wrong. Oh, and it was also, pretty much what Comcast trains its reps to do.

But at least Comcast respects its reps, even if it’s willing to put its customers through hell, right? After all, Watson didn’t just blame the employee for that root-canal-meets-colonoscopy of a phone call. He pointed the blamethrower at the company, too, and that shows a healthy respect for the spot in which Comcast puts its workers, right? Maybe not so much, according to a new lawsuit filed in New Jersey by a former Comcast door-to-door sales rep, Terry Hurley.

Hurley’s lawsuit says that Comcast refused to get licenses from various New Jersey cities that would allow him to solicit door-to-door. (Incidentally, Hurley alleges he worked for Comcast as a “Win Back representative,” which is apparently the next guy they sic on you after the “Retention professional” fails.) So after a customer has just had to fight like crazy with Mr. Retention to get his service dropped, Mr. Win Back shows up without the proper documentation. What could possibly go wrong? Well, in Texas, we’d probably shoot him, but in New Jersey they just called the police who warned Hurley that he was soliciting without a license and he needed to knock it off. To his credit, he did. And then Comcast fired him for failing to meet his sales quota.

Now, truth be told, Hurley’s lawsuit doesn’t sound terribly strong to me. Sales quotas aren’t necessarily tied to sales territories, and the worst thing Comcast did by failing to obtain the needed licenses was reduce the size of Hurley’s potential sales territory. But it shows a real callousness toward employees, customers, and . . . well, pretty much everyone, if Hurley’s underlying allegations have any truth to them. Comcast’s reps already get trained to violate basic etiquette. It would be nice if they didn’t get told to violate the law, too.

H/T to Courthouse News Service.


Workplace harassment? There’s an app for that….

July 17th, 2014

Rate your co-workers. That’s what a new smartphone app, Knozen, promises. The app asks a series of questions, pitting one co-worker against another, with the app user giving the answers.

It asks about attributes: who is more assertive? who is more sympathetic? spontaneous? And it asks about some “real world” scenarios: who is more likely to buy cookies from a girl scout? who is more likely to leave work early for a date? And Knozen raises one more question: what could possibly go wrong? I’ll answer that for you: plenty.

Even though the questions themselves seem fairly innocuous, there’s subtext to everything, particularly when workplace politics and roles come into play. That’s where the creators of Knozen have been shortsighted. It’s a small step from being labeled an “assertive” woman to being labeled “bossy” or a “bitch.” It’s a small step from being called “spontaneous” to being called “unreliable” or a “flake.” And, because Knozen claims to maintain the anonymity of the person answering the questions, there’s extra temptation to use it for less than complimentary purposes, despite the purported “upbeat” tone of the various questions.

In short, the makers of Knozen have developed a tool for workplace harassment outside the workplace. Incidentally, the app is specifically tied to employment. It asks for a work email address, in particular, for registration purposes, and it will not allow a user to go forward and “rate” people until at least seven from the same workplace have signed up. This is posited as a way to ensure users’ anonymity because apparently Knozen’s developers have never heard of the process of elimination.

Perhaps I’m being paranoid, but Knozen seems to me like a recipe for disaster, if not a surefire one. Rather than fostering an “open door” workplace environment where the inevitable conflicts get worked out face to face, Knozen would seem to encourage back-channel, would-be anonymous grousing about co-workers’ various foibles and habits. That’s exactly the kind of stuff that starts out innocent enough before turning into lawsuits and liability when left unchecked.


Setting the Standard

July 16th, 2014

Asbestos litigation is a horrid corner of tort litigation in Texas.  It’s a rote practice.  Every case looks pretty much like every other case.  The facts are all the same, the witnesses are interchangeable, and there’s generally no creativity exercised by anyone on either side of the counsel table.  It’s a business, not a profession, and you can pretty much mark it as “Exhibit A” in the case of Why People Hate Lawyers.  It probably has more in common with direct mail advertising than law practice.  Everyone established a long time ago that it’s much cheaper to settle cases than to try them, and defendants long ago quit asking for real proof.  The cases became a cash cow and very little else.  Consequently, any new lawyer who found himself heavily involved in asbestos litigation came out five years later with no marketable skills to speak of, despite having attended hundreds or even thousands of depositions.  The only way anything of interest happens in the area is if the Legislature or an appellate court—preferably the Texas Supreme Court—takes some sort of action.  Otherwise, the machine just keeps humming along.

Some years ago, the Legislature did take action.  It introduced new statutory requirements for proof in asbestos litigation and laid the foundation for an inactive docket for plaintiffs who claim exposure to asbestos but who have not developed any sort of symptoms, as a result.  And, thus, asbestos litigation took a step toward normalcy as Texas adopted the rule that you actually have to be sick to sue someone for giving you a disease.  Granted, previously statutes of limitation created problems for plaintiffs because, as soon as you know about exposure, limitations begins to run, whether you’re sick or not.  But plaintiff’s lawyers trolling for new clients didn’t help the situation.  They established mass “screenings” where hundreds of plant workers would file through a mobile x-ray lab to be checked for evidence “consistent with” asbestos exposure, even though asymptomatic.  It did little for the workers–asbestosis being acknowledged as an untreatable condition–but it kept the flow of clients into the machine.

In 2007, the Texas Supreme Court issued its opinion in Borg-Warner Corp. v. Flores.  Flores was a landmark case in that it held that the causation standard—substantial factor—that applies to every other product liability case in Texas also applies to asbestos cases.  Thus, Flores confirmed that, in order to prove his case against a defendant, a plaintiff would have to show that the defendant’s activities or products were a substantial factor in causing asbestos-related disease.  This makes sense because asbestosis—the disease most plaintiffs claim—is based on the amount of exposure, but previously, defendants were unable to get out of a case without paying a settlement, even where a plaintiff might allege or be able to prove only an hour or two’s worth of exposure to a defendant’s products, worksite, or asbestos workers.  An hour’s worth of exposure over the course of a forty or fifty year career was enough to push a defendant to trial.

About a week ago, the Court took the next step, applying the Flores causation standard to mesothelioma cases in Bostic v. Georgia-Pacific Corp.  Now, mesothelioma is a different animal from asbestosis.  It is a cancer and a truly horrible, inevitably fatal one.  It might not rear its head for forty years after exposure, and, while even experts for plaintiffs will tell you that there is a “safe” level of asbestos exposure vìs-a-vìs asbestosis, no such level exists with regard to mesothelioma.  And, as a result, plaintiff’s experts for years testified that any exposure—any exposure at all, even a single fiber – caused by a defendant was a factor in causing mesothelioma.  Bostic put the brakes on that.  Despite their “one fiber” evidence, mesothelioma plaintiffs have to meet the same standard as any other.

The Court’s decision might appear fundamentally non-scientific, if not for one fact.  As virtually every expert in this sort of litigation regularly testifies, asbestos fibers are everywhere, particularly in urban environments.  That means that there is always a level of “background” asbestos in the air, and everyone inhales it.  So to suggest that one asbestos fiber from a product manufacturer caused mesothelioma when none of the background fibers were sufficient to do it seems non-scientific to a fault.

Justice Lehrmann, joined by two others, dissented from the majority opinion, and the rejection of science was her main criticism of the majority.  (I’m quite a fan of Justice Lehrmann, as anyone who has read my writings on SCOTX has likely noticed, and she makes a good point here, just not good enough, in my opinion.)  But, ultimately, this was more a case about Texas evidentiary standards and whether expert testimony—scientific or not—is going to allow parties to fudge those standards.  The Court held “no,” and it’s pretty hard to argue with the policy if not with the some of the details.  The quest for the “next asbestos” is always underway (and there have been some notable false starts in recent years), so it can hardly hurt to establish standards and stick with them.  Justice requires some principles that are not always “real world” ones.  Law is more than a mail-order service.


Unwritten rules

April 25th, 2014

The baseball season isn’t even a month old as of this writing, but we’ve still had our first two instances of “unwritten rules” violations.  What are “unwritten rules”?  Well, they’re the customs that everyone agrees to follow, except when they don’t agree on them or don’t agree to follow them.  Get it?  Baseball has a mess of them, and they often seem peculiar, arcane, or just plain silly to an outsider.  Anyway, here are the first two instances from this season (or at least, the ones I know of).

 First came the Houston Astros’ manager Bo Porter having not-so-nice words with Jed Lowrie, shortstop for the Oakland Athletics.  The A’s were cruising as early as the first inning against the Astros, putting up seven runs to the Astros’ zero.  With Lowrie coming up to bat, the Astros played the shift, meaning they positioned all the fielders to the right, resulting in the third-baseman playing about 20 feet off the third-base line.  With his team already up 7-0, Lowrie tried to lay down a bunt along the third-base line, which would have made a near-impossible play at first for the Astros’ fielders.  On his next at-bat, Lowrie found himself the target of several retaliatory brush-back pitches.  He flied out to end that inning but had a few choice words he shared with Astros’ second baseman Jose Altuve.  And that was when Porter got involved, leaving the dugout to read Lowrie the riot act.

 A manager chewing out an opposing player is an unusual sort of thing.  It’s kind of like an invited guest yelling at the help.  It’s just not done.  But that’s not the unwritten rule I’m talking about here.  Porter was incensed because he seemed to feel Lowrie violated the unwritten rule of “thou shall not take extraordinary measures to pile on to an already beaten opponent.”  This may apply doubly when the opponent has the Astros’ anemic offense.  Whether or not Porter really had any right to get upset is a matter for debate.  If your team is capable of being beaten before the end of the first inning, it doesn’t make much difference what the other team does, and because it was only the first inning, more than arguably, Lowrie was just doing his job.  But the fact that Porter felt justified in being incensed shows how seriously some take the unwritten rule.

 In another instance, just in the last week, Yankees’ pitcher Michael Pineda got ejected from his club’s game against the Boston Red Sox and landed a 10-game suspension, to boot.  Formally, the ejection and suspension were punishment for doctoring the surface of the baseball with pine tar to allow himself a better grip.  Baseball has a long history of pitchers scuffing the ball with nail files, emery boards, or sandpaper; smearing the ball with Vaseline, to make it slip off the fingers; and the liberal use of pine tar by both hitters and pitchers.  (Don’t get me started on corked bats and PEDs.)  It’s an express violation of the written rules, but the conventional wisdom is that “everybody does it.”  It’s the nasty little habit everyone has:  like picking your nose, scratching inappropriate places, or sniffing your armpits.  As long you don’t advertise it, everyone is willing to act like it doesn’t happen.

 But, Pineda’s sin was doing it to the same opponent twice in a row and being so obvious that the Red Sox couldn’t help but catch him at it.  (The smear of pine tar on his neck was readily visible in game photos.)  Red Sox manager John Farrell brought it to the attention of the umpire and said after the game, “when it’s that obvious, something has to be said.”  Again, the unwritten rule:  “Cheat discreetly.”  Pineda’s violation was so great that Yankees’ GM Brian Cashman felt the need to express his embarrassment about it.  (Of course, a person more cynical than I might suggest that it’s rather nice the Yankees are still capable of feeling shame about something.)

It got me thinking about the unwritten rules that govern my own profession and my own little corner of it.  In litigation, generally, but especially in the appellate arena, we’re all expected to play nicely together and avoid disagreement for its own sake.  So when a fellow appellate lawyer—a smart, experienced, and honorable practitioner of my acquaintance—mentioned on Facebook this week that he had received pushback from his opposing counsel on getting an extension of time to file a brief (and this, when he had only just entered an appearance in the case), the opprobrium was palpable.  Every appellate practitioner has been in that situation of having looming deadlines and too much to do to meet them all.  Our unwritten rule is that you don’t oppose someone when he asks politely for your position on his extension.  You agree to hold your tongue, regardless of how you feel about it and explain it to your client as a strategic decision.

 So, in some ways, the attitude of legal practitioners mirrors that of baseball players.  Even if the rules don’t require civility in certain areas, custom certainly does, and the lawyer who flouts the unwritten rule risks becoming a pariah.  No one wants to be on the business end of that brushback pitch.