Jul 13, 2011, 3:05 PM EDT
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.
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