Friday, November 28, 2014

Hitting Home Runs, Moving the Goal Posts, Putting on the Full Court Press, and Other Legal Maneuvers

Today while searching around I happened upon an interesting new article appearing in the Journal of Sports & Entertainment Law. The journal is published by the Harvard Law School, and the article by Megan E. Boyd is called “Riding the Bench -- A Look at Sports Metaphors in Judicial Opinions.”

For various reasons, not the least of which being my teaching a class called “Poker in American Film and Culture,” my ears always prick up whenever I hear poker metaphors employed in non-poker contexts. And it happens a lot, with poker terms and phrases popping up on a regular basis all over, especially in politics, sports, entertainment, and business.

As the title of Boyd’s article suggests, the use of sports lingo in legal matters is the focus of her article. She begins by noting how “the adversarial nature of the court system in this country mirrors the very nature of competitive sports,” thus making it unsurprising that sports analogies should be frequently employed in the courtroom.

Just wading into such a discussion makes it hard not to think about how legal matters are often covered by the media today -- that is to say, as if they were sports contests. In any case, Boyd makes some interesting observations about how ubiquitous sports-related metaphors are in legal arguments, with some of the most common phrases such as calls for “fair play” or to “level the playing field” evoking at once ideas of legal justice and rules for ensuring games’ integrity.

The article discusses metaphors drawn from boxing, baseball, football, basketball, golf, hockey, billiards, rugby, track and field, wrestling, cricket, and car racing. And there’s even a section covering poker, too. “ESPN considers card playing to be a sport,” Boyd explains in a footnote, “and because of the interesting poker-influenced metaphors found in judicial opinions, I have included it here.”

In that section she runs through several examples including plaintiffs having to “reveal their hand,” attorneys using an “ace in the hole” to launch suits, or parties “sandbagging” by withholding evidence until more opportune moment.

Boyd also mentions how lyrics from “The Gambler” often get quoted in the courtroom, citing a couple of instances. She doesn’t mention there another reference to the song in a legal context from about three years ago when a couple of the Black Friday defendants, John Campos and Chad Elie, were still fighting to have their cases dismissed. (You know what I mean -- that Black Friday, not today.)

Amid that battle, federal prosecutors filed a response to the pair’s motion that spelled out the many reasons why the host of charges against them should stand, a statement that reaffirmed poker to be gambling and thus covered by the Illegal Gambling Business Act.

In a totally superfluous aside, the feds also included a reference to “The Gambler” identifying it as “Willie Nelson’s classic poker song.” We know Willie plays poker -- and can perform a good card trick, if you ask him -- but obviously they meant to refer to Kenny Rogers there.

Some gaffe, that, although I didn’t really matter much to the argument. Sort of like missing a fly ball with two outs with the two-base error not resulting in any runs scored.

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