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Curt Flood’s lawyer was unprepared

Jul 13, 2011, 3:05 PM EDT

Curt Flood

This comes from the “I never knew that” file.

Apparently Curt Flood’s attorney in front of the Supreme Court for his famous — and ultimately ill-fated — challenge of the reserve clause was woefully unprepared. That, via the New York Times, is the story that will be told in a documentary that will air tonight on HBO entitled “The Curious Case of Curt Flood.”

The lawyer was not just any lawyer, though. It was Arthur J. Goldberg, who was a justice on the freaking Supreme Court from 1962-1965, helping (for better or worse, depending on your point of view) take the court in a sharply more liberal direction than it had been in the past. Goldberg crafted decisions on the death penalty and privacy rights, among other things, which continue to help fuel fierce debate to this day.

Say what you want about the merits of those decisions, but you don’t make that kind of mark by half-assing things.  Goldberg had a very bad day representing Curt Flood in 1972, however, and as the story and the documentary explain, it was probably because he half-assed it:

He did not deliver pointed, persuasive arguments. He lost his place. He did not answer justices’ questions directly. He clumsily listed Flood’s season-by-season batting averages. He went past his allotted time. He repeated himself. He spoke as if he did not understand baseball, citing the several “Golden Gloves competitions” Flood won for his excellent work as a center fielder. Brad Snyder, the author of “A Well-Paid Slave,” about the Flood case, wrote that Justice William Brennan cringed at watching his friend’s struggles.

David Stebenne, Goldberg’s biographer, said Goldberg admitted that he had not prepared the way he should have, incorrectly assuming that the justices who had served with him would see the error of sticking by past decisions — and not wait any longer for Congress.

On the one hand, the effect of this may be overstated.  Most appellate judges and their clerks will tell you that, usually anyway, the judges’ minds are made up before the oral argument, based on reading and scrutinizing the legal briefs which have already been submitted.  Oral argument is used to test the preliminary decision that was made, suss out nuances which were unclear from the briefs and that kind of thing.  Sure, the arguments can change a judge’s mind, but if you’re going to strike out on one of the phases of the case, better to have a bad day at oral argument than to submit a bad brief.

That said, you should do neither. A lawyer can win a case if he or she is talented or relatively untalented. A lawyer can win a case if the law is mostly on their side or if they’re fighting an uphill battle. What a lawyer can rarely get away with, however, is being unprepared. It casts a pall on your entire case. It causes the judges to go back and look at that brief and wonder if it really was as good as they thought. It also freaks your client out, and that’s not good.

My guess: Goldberg’s awful, unprepared performance didn’t change the course of the Curt Flood case,* because the justices likely made up their minds beforehand.  But it sure as hell didn’t help.


*I don’t have HBO, so someone tell me tomorrow if the documentary comes to any strong conclusion about this.

  1. heynerdlinger - Jul 13, 2011 at 3:20 PM

    I don’t have HBO, so someone tell me tomorrow if the documentary comes to any strong conclusion about this.

    Duh. Business expense.

  2. bloodysock - Jul 13, 2011 at 3:21 PM

    Goldberg was doomed since he only spoke to Flood’s batting average and not his UZR, WAR and OPS+.

  3. skerney - Jul 13, 2011 at 3:32 PM

    Curt flood has always been, and always will be one of my biggest heroes.

  4. lessthanittakes - Jul 13, 2011 at 3:42 PM

    Is this at all based on “A Well Paid Slave?” A must-read, btw…

  5. mattjg - Jul 13, 2011 at 3:50 PM

    Stan Hochman of the Philadelphia Daily News claims the documentary focuses on Flood’s bad side and ignores his contributions to today’s game. If it’s actually a hit piece as Hochman claims, I’d take the claim about his lawyer’s unpreparedness with a grain of salt.

    There’s a bit of discussion of Hochman’s article over at BBTF:

    • mattjg - Jul 13, 2011 at 3:54 PM

      Although after reading Hochman’s whole article, Hochman acknowledges that Goldberg “choked” in front of the Supreme Court. I don’t have HBO, but the documentary sounds interesting.

  6. kurtstallings - Jul 13, 2011 at 3:59 PM

    Your analysis is exactly right, I think, based on my own experience as an attorney who clerked for a federal judge. Particularly at the appellate level, the judges walk in having read virtually everything of substance to be considered. Naturally, each has his or her tentative view and their questions usually signal what they see as the weak points in the argument of each advocate.

    Mr. Goldberg may have been over-confident of his position in the Flood case in part because he was a brilliant labor lawyer (formerly Secretary of Labor under John Kennedy). Labor law, and antitrust law, all weighed heavily in Curt Flood’s favor. The baseball specific precedents to the contrary were sufficiently aged (and so out of step with the rest of relevant precedents) the Supreme Court would have had no particular burden under stare decisis in reversing them and finding for Flood.

    Instead, we got an opinion that was heavy on the mythic lore of the national pasttime, short on logic, and big on slapping down Flood’s impertinent suggestion that those working in that specific industry should have the same rights and liberties of those working in every other industry. Mr. Flood lost his personal battle and baseball lost Curt Flood (his return with the Senators showed the effects absence and the strain of the case had on his abilities and he was done after one year). But the decision’s sheer soft-headed lunacy became a private joke among lawyers, setting the stage for the revolution brilliantly accounted in John Helyar’s “Lords of the Realm.” I disagree with those who claim the Flood case had no impact, in that Peter Seitz used the latent opt-out in the reserve clause to break the reserve clause system in the Messersmith decision. Everyone had always known that the clause was flawed and breakable. It was the Flood case that made it apparent it needed to be broken, and plenty of legal firepower would defend the action if necessary. The Flood case, built on nothing more than sentimentality and paternalistic trust in the overlords of baseball, was not one the overlords could stand on. Baseball labor law rapidly moved into the modern era (with all its own problems).

    Flood was genuinely heroic, and gifted in many ways. Check out his paintings some time,. He was a complex and heroic figure.

    • lessthanittakes - Jul 13, 2011 at 4:07 PM

      Flood’s comeback was just as hampered by his own demons as it was by the legal battle. And his paintings were fake. He sent pictures to a different artist then signed the paintings. He was a respectable sketch artist, never a portrait painter. Again, read Brad Snyder’s book. Very fair to Flood, if not totally sympathetic. Never glosses over his short-comings as a person, however.

      • kurtstallings - Jul 13, 2011 at 6:03 PM

        That is fascinating info about the fake paintings! Thanks.

  7. Richard In Big D - Jul 13, 2011 at 5:18 PM

    Here you go, Craig! HBO now falls into the same category as the MLB network! You can’t do your job properly without it, so let the boss (your wife) know that you now have this additional expense for your job. If you call quickly, they may be able to flip the switch before it airs…

  8. SmackSaw - Jul 13, 2011 at 5:27 PM

    They’ll give you HBO for free for 3 months. I did it. Call your cable company and ask.

  9. 24may98 - Jul 13, 2011 at 5:44 PM

    At last, the truth outs. I haven’t read the NYT story. I don’t need to read it; I witnessed it. I sat in the front row of the oral argument with my DOJ Antitrust Division colleagues. We knew the law very well and the significance of the case. We were appalled by Ambassador Goldbergs’s presentation. (Yes, “Ambassador.” He let LBJ flip him from Supreme Court Justice to UN Ambassador so he could appoint his pal, the ill-fated, tainted Abe Fortas.)

    We bright young lawyers all left shaking our heads, disappointed that the merits of Flood’s case were bungled by his inept counsel – virtually inexpert of antitrust law (indeed a labor lawyer by trade). If ESPN’s Chris Berman were doing the voice-over play-by-play of Goldberg’s oral argument, it might go “He’s . . . Stumblin’ . . . .Fumblin’ . . . Mutterin’ . . . .'” The ultimate embarrassment of the day occurred when Chief Justice Berger was compelled extend the grace of added time to his former Brother to conclude his miserable argument that was lost and wandering in a wilderness of impertinence. This after each side had been granted an extraordinary one-hour to argue.

    Of course, the NYT covered the argument, and so has suppressed the story its reporter witnessed but blinked 40 years ago – until near 15 years after Curt Flood died. Yes, theirs is last brick in the wall of silence.

  10. kurtstallings - Jul 13, 2011 at 6:06 PM

    Very interesting insight. Thanks! I have always been amazed that Goldberg agreed to leave the Supreme Court so LBJ could try to put Fortas on in his place. Goldberg’s career past the Ambassadorship foundered. He tried to get back on the Court when Fortas was shot down, but LBJ was not enthusiastic and the 1968 election ended any chance of that.

  11. spudchukar - Jul 13, 2011 at 9:08 PM

    A brave man, spectacular center fielder, who is under appreciated in baseball, and by Cards fans too.

  12. natstowngreg - Jul 14, 2011 at 6:27 PM

    Seems I was one of the few who actually watched the documentary. It made it clear that Goldberg botched the case, and even played a couple of audio clips, with Goldberg citing statistics without getting to the point, then running out of time. From the comments by participants from both sides, the documentary’s producers suggest that Goldberg’s failure may have lost the case, though they also noted that at least one justice changed his vote at the last minute.

    However it happened, the Court decided not to change the precedent giving baseball an antitrust exemption, and told the Congress to deal with the issue. But the argument against the reserve clause resonated several years later, when an arbitrator freed Andy Messersmith and Dave McNally from their contracts, leading to the modern free agency system.

    The documentary presented some evidence of mid-70s players expressing appreciation for Flood’s contributions (including a heavily-sideburned Joe Torre), but that was about all they did. The picture of Flood the person was tragic and disturbing — particularly, his neglect of his family for many years.

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