Are you a football fan?
One fun part of lawyering is figuring out creative ways to explain legal concepts. And football can help.
Many people think that the law and “real life” rarely intersect, and that the law only affects them when they get charged with a crime, or get divorced, or get sued, which is why they get in touch with you. In fact, everybody lives the law every day. Often, current events create very helpful analogies that can help you explain the law to your clients. One “teachable moment” popped up a few Mondays ago at the end of a football game.
I imagine you heard about the debacle that was the Packers – Seahawks football game on September 24. In case you didn’t, suffice it to say that the replacement officials (the regular officials were locked out at that time) robbed the Packers of a victory with a jaw-droppingly bad call on the game’s last play. (Full disclosure: I am a Packers fan. But even Vikings fans at my office agreed that it was an absurdly bad call.) By rule, since the play resulted in a touchdown during the last two minutes of a half, the call on the field was reviewed by the referee. He looked at the video replay, and chose to not reverse the call.
Game over. A firestorm of controversy immediately ensued.
What struck me, in addition to the gross incompetence of the officials who blew the call in the end zone, was that the referee, in watching the video replay, did something surprising. He applied the replay review rule as written. The video replay did not prove indisputably that the call on the field (that Seahawks receiver Golden Tate had “simultaneous possession” of the ball, along with a Packer defender) was wrong. So, the call stood. I long ago concluded that most referees don’t apply the rule as written. Instead of simply looking at the replay to determine if it’s beyond dispute that the call was wrong, they watch the replay and uphold or reverse the call based on what they see.
So, the day after the game, everyone who watches football was talking about the game and the play and the review and the decision. If you were talking to a client (or potential client) about it, you could teach several legal concepts while just chatting about the game. Here are a few:
Scope of Review
- What is reviewable? In every NFL broadcast, you’ll hear the announcers discussing which calls by the officials are reviewable. Sometimes the head coaches, who can demand video review of a limited number of plays, are not clear on those distinctions.
- If your client gets a bad legal result, she needs to understand what she can and can’t appeal. It’s your job to make that clear.
Canons of Construction
- Does the referee understand what “indisputable visual evidence” means? It’s a legal standard, like “proof beyond a reasonable doubt.” I’d say the two have essentially the same meaning. But since many referees don’t understand the term, or choose to ignore it, it’s very difficult for coaches to know when they should challenge a call, because the result of the review is so difficult to predict.
- Does this sound eerily similar to the great reluctance that lawyers feel about going to trial?
- What was the NFL trying to achieve in writing that standard into the rule? How much leeway did the league intend to give the referee in confirming or reversing the call on the field? I think the league wanted referees to reverse only the calls that were obviously botched.
- Even the purportedly wisest judges can choose to ignore what the legislature intended.
- A few days after the game, the NFL admitted the officials messed up and cost the Packers the game by failing to penalize Tate for pushing a defender while the ball was in the air. So the Packers lost a game that everybody agreed they should have won (with the possible exception of the most hard-core Packers-haters. You know who you are). But the mistake could not be fixed by the league because the game was over. But one savvy writer thinks that should be changed to allow the league to reverse a call, and change a game’s result, when a game is won because of a blown call on the last play of the game.
- Should a governor grant clemency to a prisoner that the governor is convinced was wrongly convicted, but the courts won’t act? Or, if a state supreme court hands down a decision that businesses don’t like, should they have the option to bankroll the candidacy of an unqualified, obscure district court judge to oppose the decision’s author in the next election?
Activism vs. Restraint
- If all referees began strictly applying the “indisputable visual evidence” rule as it’s written, would the fans and players be happier? Would there be more or less “justice” in terms of getting the “right” result? If your team were in the Super Bowl, with the game hanging on the last play, would you want the referee to make the call based on what he believes occurred and what is a fair result based on all his years in football and his understanding of how all the rules fit together? Or would you want him to apply the rule strictly as written in order to maintain stability and some degree of predictability next season?
- If your client’s case were before the Supreme Court, would she want consistency, or a “fair” result? It depends, of course, on which side she is on.
So when you meet with your client, start talking football. Before you know it, you’ll be discussing core concepts of jurisprudence, then your client’s options. Your client will come away with a better understanding of the law, and nobody will wind up on injured reserve. Unlike a football game, it’s a win-win.
(photo: referees from Shutterstock)