Lawyering in the midst of basketball craziness

There is a certain competition currently underway between student athletes who practice their endeavors in the name of a college at which they claim to matriculate, under the approval, sanction and endorsement of an association of undergraduate institutions, on a wooden court in which said athletes attempt to put a round spherical object through a horizontal metal ring placed against Plexiglas approximately ten feet from the ground on a sufficient number of occasions to accomplish the feat more often than those athletes on an opposing compilation of persons acting in the name of a different college or university, in order to be determined to be a victor, thus allowing such victor to compete again in a later similar endeavor against another group of athletes who have been similarly successful, continuing in such fashion until the victor of such contests has no other group of persons available to play in such an associationally approved endeavor and is determined to be the ultimate victor. This craziness occurs in the third calendar month.

Normally, I would have referred to the above contests as the NCAA basketball tournament or "March Madness," but I have recently been engaged to defend several different businesses against claims that they used the term "March Madness" or "NCAA Tournament" without permission, allegedly infringing registered trademarks of the NCAA. I thus tread lightly. Apparently, the NCAA is pretty crazy about its March Madness Moniker.

In any event, the basketball contest that currently winds its way towards completion brings up a lot of law related thoughts and consternations - and not just because of my clients' predicaments or the fact that the word "court" is mentioned in national media over 1,500,000 times more in March than in any other month. After all, the fight for victory on the court is not unlike the fight for victory in the courts, the crash against the boards is not unlike the crashes within some board rooms, and rulings from judges are often way too similar to the improbable upset win. In addition, the overlap in the use of terms between sports and the law also makes it difficult to prevent the mind from wandering back to the work left undone at the office once the game on the television is no longer in doubt. The similarity of tactics is also interesting, to say the least.

Take "trash talking" for example. Although I prefer to believe that we are more polite, the intent to get into the head of a lawyer's opposition is the same for the lawyer as for the collegiate trash talker. As a young lawyer many moons ago, it quickly became apparent that more seasoned adversaries would attempt to intimidate me and sap my confidence by pointing out my lack of experience, knowledge or training. They would attempt to portray themselves as my superior and me as their fledgling unequal. To counter these efforts, I quickly determined it was necessary to elevate my stature in their eyes, even if it meant lowering theirs. One of the easiest methods of accomplishing this goal, I discovered, was to use an opponent's first name as a trash talk weapon. Upon receipt of correspondence or communications addressed to "Mr. Kramer," I would immediately respond to "Mike" or "Susan" on the other side. I would similarly walk into a crowded conference room and walk right up to the opposing attorney 30 years my senior and smile, stick out my hand, and say, "Hello, Dave, nice to see you." It was surprising how often that minor gesture changed the mood and the course of things.

Zone Defense is another example. Although I confess that the legal maneuver may bear little more than a name in common with the "stand around, put up your hands, and pray they shoot and miss" basketball strategy, a zone defense is still a zone defense. About six years into my practice, I was contacted at my office in St Louis at 4:45 p.m. by opposing counsel who insisted that a deal we had been working on for more than three months would be dead in the water unless I obtained a certain document from a certain office of the U.S. government immediately. My erstwhile opponent was quite pedantic, and by the time she had finished her explanatory rant, however, it was 4:54 p.m. My frantic efforts to locate the correct person at the local office succeeded at 4:58 p.m., but she informed me nonetheless that the offices were already closed and that no documents could be generated until the next day (sadly, the log-in and download ease of today's world had not yet been invented, let alone implemented by federal governmental offices). I called back opposing counsel to explain, but she simply said it didn't matter, it was not her client's position but rather was actually a deadline required due to some international aspects of the transaction. It wasn't a posturing bluff, as it turns out, but a true requirement that had to be satisfied or the deal simply couldn't happen. That's when the zone defense, legal variety was borne. The idea came to me like a half-court shot at the buzzer. I assured my counterpart there was nothing to worry about, got off the phone and called directory assistance (as noted above, it was before the internet). Within a scant few minutes, I was able to locate the Los Angeles office of this governmental entity, where it was only 3:30 p.m. An hour later, I had the document in the hands of all who needed it, thanks to fax transmission technology (you know, the stuff that existed before scan and email).

I had the occasion to use the "time zone" defense again just yesterday. My client had insisted on a certain action being taken by 2 p.m., announcing the deadline with a lot of yelling, demanding and desk pounding. Perhaps to prove a point, the opposing side complied by taking the action, but did so via an email at 2:45 p.m. The timing would still work for my client, and it was in his best interest to still go forward, but ego and face-saving were important to him. He was thus inclined to blow the deal "on principal" because he viewed the late response as an "obvious" power play, despite the economic benefit he would gain from going forward. Sometimes the job of a lawyer is to save a client from himself, however, and the zone defense came to the rescue once again. While discussing my client's options with respect to how to proceed with him, I realized, that he happened to be in Idaho for the day, and was thus in the Mountain time zone, where it was an hour earlier. I pointed out that, for him, the action had been taken by 1:45 p.m., despite the time stamp on the Chicago-sent email. He confirmed that an email sent from his computer in Idaho would show his local time, and acknowledged performance via a return email showing his time zone, and all were happy.

The moral of the story of course is that some legal strategies, like those needed to upset a more-favored basketball team, require thinking outside the box. It also shows why college basketball is a much better game than the version played by the NBA - the colleges still allow the zone defense.

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© 2018 under analysis distribution LLC. Charles Kramer is a principal of the St Louis Missouri based law firm Riezman Berger, PC. Under analysis is a nationally syndicated column of the Levison group. Comments may be sent c/o this paper or direct via email to comments@levgroup.com

Published: Fri, Mar 23, 2018