My wife, Kristen, is rooting for the New England Patriots to win the Super Bowl. How can that be?
One of her favorite shirts includes the saying: “My two favorite teams are the Buffalo Bills and ANYONE who beats the Patriots”. Speak of the Patriots and Kristen will lecture you about cheaters who steal signals, dig opponents’ play books out of the trash, and allegedly even bug the opposing team’s locker room. Mention Tom Brady and Kristen will recite all the details surrounding “Deflategate” before she gets into Brady’s “character” issues. Yet, Kristen is rooting for the Pats to win it all in the Super Bowl.
Does Kristen detest the Patriot’s opponent even more so than the dreaded Patriots? No. She has no real feelings one way or the other about the LA Rams. She might be hard pressed to tell you the colors of the Rams’ uniforms. She holds no strong opinions about LA itself. To Kristen, the Rams are simply “there”.
It gets better. After the Super Bowl, Kristen has all but vowed to completely give up on the NFL. Did you hear that NFL advertisers? Kristen, a fairly avid fan, plans to catch up on projects and respond to emails on Sundays next Fall rather than watch your games. Kristen, the reigning champion of her 14 team fantasy football league, would rather get her early Christmas shopping done instead of seeing the games.
What could possibly have happened to so turn upside down the universe that Kristen would actively root for Team Brady, et al. and then walk away from the sport? For Kristen, the integrity of the game (whatever integrity may have remained) was left on the field of the New Orleans Superdome with the now infamous “no calls” of pass interference and helmet to helmet hit late in the NFC Championship game between the Saints and the Rams.
As we all know, including non-sports fans, the referees missed these blatant fouls with precious little time remaining in the game to decide who would advance to the coveted Super Bowl. If called properly, little doubt exists that the Saints would have run the clock down and kicked a “chip shot” field goal to win with time expiring. Instead, to their credit, the Rams tied the game and then exited victorious in overtime. Did this football play transcend sports? Well, during the recent government shutdown, members of the House of Representatives took to the House Floor to introduce resolutions about it.
But, referees are human. They miss calls, even game changing calls. These “no calls” were not reviewable under NFL rules. Sorry Saints. But wait, little known and never invoked NFL Rule 17, Section 2, Article 3 allows the NFL Commissioner to change the outcome of a game, require the game to be replayed, or require the game to be replayed from the time and spot of the offending conduct. To uphold the integrity of the outcome of the game and provide a just result, the Commissioner would surely step in to do the right thing. Right?
Did compelling and clear evidence exist that the calls were missed? The videos confirmed that the Rams defender never even tried to make a play on the ball, but instead tackled the Saints receiver well before the ball arrived. Hmm? Was this situation simply a too close to call judgment call? Consider the statement from the Rams’ player who committed the fouls: “I put his ass on a Waffle House frying pan! It was football! If you don’t know the sport, well, then, news flash: We hit people. It’s the NFL. And, sometimes, we’d rather take a flag and hit somebody than somebody catch and score on us.” Someone needs to counsel this player about legal admissions and declarations against interest.
Ultimately, the NFL itself acknowledged the penalties after the fact. The NFL levied a $27,000 fine against the Rams’ defender for a helmet to helmet hit. Yet, these acknowledgements and a petition with about 1 million signatures demanding justice meant nothing to the NFL Commissioner. He would not invoke NFL Rule 17, Section 2, Article 3. The Rams win. Move on.
But wait, again. Disgruntled Saints fans filed a lawsuit seeking the NFL Commissioner to require a do over. Ultimately, that action did not succeed. Notably, in response for the demand for injunctive relief, the NFL CFO filed an affidavit claiming, in part, that the NFL could lose in excess of $100 million if the Rams-Saints game had to be replayed and the date of the Super Bowl then placed in jeopardy.
Ahh! There it is. The NFL asserting, in open court, under oath, that money was more important than the integrity of the games. I explained to Kristen that one factor a court considers on applications for injunctions is the economic harm which could result. However, the only message Kristen received was confirmation of the NFL’s greed as vastly superior to the quality of the product on the field. You have lost an ardent fan, NFL, not because you missed a call, but because how you handled it.
It struck me that the Rams-Saints game, and its subsequent handling, could be a teaching moment for those involved with settlement of legal disputes. As a mediator, significant effort involves identifying risks for each party and the benefits of avoiding those risks through agreed upon resolution. At length, we discuss “litigation risks”.
Simply put, litigation risks are the wild cards in proceeding to trial. Some such risks are identifiable, but not quantifiable. For instance, the demographics and socio-economics of the potential jury pool may be well understood, but the make-up of the particular jury empaneled for your case will not be known until the trial begins. Similarly, the trial judge may delay ruling on critical motions vital to claims in issue. These types of issues may be identified in advance as realistic risks of proceeding. Parties can attempt to handicap those risks and place some value on them.
The more challenging litigation risks are akin to the Saints-Rams game. These risks are unknowable or unfathomable before trial. If someone postulated these risks as hypotheticals before trial, they would be dismissed as far fetched plots from Grisham novels. But, these things happen and they happen often. Here are a few “life is stranger than fiction” examples from my career.
First, with a two month jury trial heading toward conclusion, the judge casually advised that every Sunday morning, he plays golf with three of the lawyers for the plaintiffs. The judge merely wanted to place that statement on the record as he was certain that no one had issue with social sporting events. Every evidentiary and procedural ruling having been made in favor of the plaintiffs suddenly made sense.
Second, during jury deliberations on Christmas week after a five week trial, the judge advised that he, on his own, reconsidered his jury charge and would add a new element to the claim the plaintiff had to prove. The judge brought the jury back into the courtroom, stated that he meant it when he previously advised that the jurors would be done before Christmas; re-instructed the jury (over objections) adding in a new element which no party addressed during the trial; and instructed the jury to deliberate further. Fifteen minutes later, the “deadlocked” jury returned a verdict favorable to the defendants.
Third, immediately after conclusion of a three week jury trial, a lawyer on our team received a perfumed, heart-laden note from Juror #6 inviting the lawyer out for a cup of coffee or glass of wine. It appeared that the trial was a healthy distraction for Juror #6 as she just went through a difficult separation. The lawyer would have to disclose the note to the court, the adversary, and, of course, his wife.
For the Saints fans, a missed penalty call would be a realistic potential ending to a game. To have the circumstances unfold as they actually played out would be closer to a work of fiction. To result in national attention, debate on the House Floor in Congress, and reliance on an obscure, never previously invoked NFL rule through social appeals and a lawsuit is beyond rational consideration. To have those like Kristen declare that they will no longer be fans of the NFL represent consequences never intended by the NFL powers that be. The outcome of the Saints-Rams game represents the unknowable type of litigation risk.
For litigants, having the judge change the rules after years of litigation and lengthy trial because it was Christmas week is not the result any party desired. That action guaranteed two things: a costly appeal and even more costly re-trial. Having Juror #6 show up with a bottle of wine may confirm that you connected with the jury, but not in a manner which did you any favors to preserve the outcome of the trial. These circumstances could not have been anticipated before trial, but each threatened the outcome of the trial. They are among the unknowable litigation risks.
Trials are unpredictable. That much is certain. How they will be unpredictable is the unknown and unknowable. These risks cannot be avoided and they are a challenge to quantify. This challenge does not mean they can be dismissed or avoided. Just the opposite. Parties need to understand that their cases, no matter how well prepared, will not play out as anticipated. The question becomes whether the unknown is a simple mis-step or a landmine for your entire case. If you are still not convinced, just ask the Saints. But do not bother to ask Kristen. She is no longer a fan.