LET THE UMPIRE BEWARE

         I recently came across an article I'd written in 1965 for the Sunday magazine of the New York Herald Tribune. I was early in my legal career, and this was the first piece of mine that was published. What follows are unvar­nished, unretouched excerpts from the original – this is the way it was.

         At 6:00 p.m. the elevator opened in the lobby of One Chase Man­hattan Plaza. Nine of the top young legal minds in New York City emerged, clad in sneakers and tattered khakis. Hailing taxis, they passed the ride discussing convertible debentures and pour-over trusts; two Louisville Sluggers and a catcher’s mask dangled over the front seat. Deposited on the periphery of the Lower East Side, near the river at the point the island bellies to its broadest, these Harvard-schooled professionals vaulted the wire restraining fence and sprinted onto the sandlot. As Manhattan settled down to another long summer’s night, the Wall Street lawyer was hard at play.

         From May through August each year, the self-styled Law Firm Softball League operates to provide young men from a score of New York’s most prestigious firms a temporary balm from cerebral de­mands. Every weekday evening during the sticky summer months, elite refugees from the halls of ivy do battle on the dirt playing fields bordering the city’s melting pot.

 *             *             *

 The Organizational Meeting

          The 1965 organizational meeting of the league was held in April, in the wood-paneled conference room of a prominent Wall Street firm. As the 30 young lawyers filed in, an attractive receptionist took their names. Foolscap pads were provided at each place around the massive table. . . .

         The discussion turned to the league rule book, a document instituted in 1963 to settle matters hotly mooted during the initial season. It is a minor masterpiece, calculated to withstand the scrutiny of a hundred­ odd draftsmen of the documents which regulate our business and per­sonal lives. Here’s a sample:

         “Only one extra base may be taken by a base runner on a ball which is overthrown in such a manner that it goes into foul territory.”

        Some instructive legislative history can be gleaned from a compar­ison of the annual amendments. An attempt to be too specific, for example, might require a future generalizing modification. Thus, the 1963 rule outlawing fast pitching prohibited;

(a)   windmill windups;

(b)   pitches that rise as they near the plate, and

(c)  pitches that would commonly be considered fast (e.g., the fast pitches of the three league pitchers known last year as being “fast ball" pitchers).

        The correlative 1964 rule, which also proscribed pitches that “would commonly be considered fast,” was forced to omit the parenthetical clause because the three young men in question, their high hard ones muted during the 1963 season, had presumably departed, disgruntled, for private industry.

Two Types of Disputes

         The rule book, though, does not always have the final word. Law­yers are, by nature, litigious individuals, and the fine points are often hammered out on the playing field itself by a form of collective bar­gaining. In general, there are two types of disputes that tend to arise; those concerned with proper interpretation of stipulated facts, and those concerned with the fact-finding process itself.

         Type One frequently occurs over the length of the game. The scene is lower Manhattan at 8:10 p.m. Car headlights from the East River Drive are partially blinding the shortstop; the third baseman, no longer able to discern the dapple-gray ball, has long since been immobilized with fear of a vicious line drive off the inadequate, lob-ball slants of his pitcher. The visiting team has just scored three runs in the top of the sixth inning to forge ahead, 9-8. As the home team trots in from the field for its turn at bat, the captain makes out the shadowy outline of his opposite number, approaches boldly, and speaks, roughly as follows:

          “Oh, John, you are aware, are you not, of the rule which states that when it becomes too dark to continue, the score reverts to that at the end of the last completed inning? Thanks for a good game, and good luck to your boys during the rest of the season.”

          “Now, just a minute,” says the other, his team's hard-won victory apparently vanishing with the speed of a judgment debtor’s tangible assets. “We started the sixth inning prior to 8:00 p.m., the ‘time the permit expires’ within the meaning of the termination rule. Therefore, our runs count.’’

       “But don’t you see,” continues the first impatiently, “the darkness rule takes precedence over the rule regulating the commencement of final innings.”

        “Oh, but you're begging the question; the two must be read in pari materia. Furthermore (and now the other breaks into oratorical stride as he squints toward his opponent’s face), how do you define ‘dark’? I can still make out the second base. . . .”

       A Type Two dispute, on the other hand, typically arises over the question of whether a certain batted ball is foul or not, and will run this way:

        “Foul!” cried the third baseman, who counsels some of New York’s largest banks on letters of credit.

        “That was right on the line!” shrieks the batter, legal adviser to the trustee under the will of a billionaire industrialist. “What are you. blind?”

        “So’s your mother!”

       “The catcher is supposed to call ’em.” shouts the runner on second, Columbia Law Review ’62.

        “Okay,” says the catcher, “foul!”

The Eligibility Rule

       The 1965 organizational meeting routinely approved the existing rules until the one regarding eligible personnel came up for discussion. It was then immediately apparent that a conflict was in prospect. . . .

         The smaller firms often experience trouble forming a team from their own lawyers. Some use messengers, file room personnel, or mail clerks employed in the office. Others turn to outside talent, often rationalizing the ringer (for want of a more judicial word) in terms of his “substantial contacts” with the firm (a noted doctrine in the law of personal jurisdiction). Thus a client of the firm or a lawyer previ­ously turned down for a job are highly prized as reasonable ring­ers. . . . Another squad teaches its ringers a few staple legal terms, such as “tort” and “collateral estoppel.” to allay any doubt about their identity. But the important thing is not so much the degree of attenuation as that the ringers not be particularly good ballplayers, thus avoiding notice.

        One team, however, which we will call Xerography, Yellowdog & Zwieback, invariably takes the field with a bare patina of legal per­sonnel shepherding a flock of frisky, agile office boys, whose antics generally provide whopping margins of victory over other firms – a situation that has long concerned some of the more sensitive partici­pants.

       The initial impetus at the meeting was supplied, oddly enough, by the firm of Angst & Bitte, the league champion of the previous year, who might have been expected to be slightly more gracious. After an impassioned polemic on the subject. A & B’s representative proceeded to demand an amended rule that would drastically curtail the number of nonlegal personnel eligible to play. This position received a certain amount of encouragement from other strict constructionists, but there was formidable opposition.

      As the hassle raged on, terms such as “good-faith compliance,’’ “arbitration,” and the like drifted across the room. One representative suggested an ingenious arrangement patterned on the Civil Rights Act, under which an administrator would be appointed to receive specific grievances and ascertain whether any team had engaged in a periodic pattern of noncompliance, thereby subjecting itself to dire penalties. Ultimately the motion to amend the rule was defeated, due more to a certain heavy-handedness in Angst & Bitte’s approach than to any defect of logic in their position.

   Almost immediately, however, the issue erupted again, with one disgruntled strict constructionist breaking the ice and singling out XY&Z by name as the problem team: do you intend to abide by the spirit of the rule, he asked the XY&Z representative point-blank? The latter replied evasively. The meeting then took on a decidedly inquisitional tone, with XY&Z’s man reeling under a withering half-hour cross-examination by his peers. In a shocking climax, a motion was made to suspend XY&Z from the league for a year unless it subsequently exhibited public willingness to abide by league policy. . . .

    XY&Z, it must be reported, agreed several days later to abide by the spirit of the rule—thus voiding the suspension—but indicated that as a practical matter, since the firm has a dearth of athletically-inclined lawyers, the muscular, rapid men of the back office will continue to wreak havoc on the rest of the league. So much for parliamentary procedure.

Requisite Attire

        The outfits of the players, representative of the league, are of a cast-off G.I. or early Appalachian cut. There are. of course, no uni­forms: there is a welter of chino, beachwear, and dirty wash. School relics are highly prized; one league player is often impeccably attired in a Yale Law Journal T-shirt and Princeton reunion pants. The standard footwear is sneakers; at least one individualist has persisted in wearing spikes, in clear violation of league rules until a special exception was enacted for him this year on the questionable ground of an old leg injury. (During games, there is a considerable muttering about “stick­ing the ball in his mouth” as he comes sliding, Cobb-like, into second base, but nothing ever comes of it.) The ultimate affectation was a pitcher’s resin bag. abandoned by its chagrined owner as the score against him climbed into the high teens. Occasional notes of fashion are struck by fine cowhide attaché cases carried to the field, containing the documents for tomorrow’s conference and an Ace bandage.

Jurisdictional Problems

       There are a limited number of softball fields in Manhattan and an abundance of teams. Thus, like tables in a first-rate restaurant, fields must be reserved in advance. The mechanics of reservation involves treasured permits issued by the Parks Department, entitling the holder to certain inalienable rights respected by all.

        Jurisdictional problems arise, however, when the attorneys desire to begin the game prior to permit-time, or in the rare instance when the permit has been left at the office. In the common situation, seven angry men of underprivileged background are occupying the field, showing no signs of imminent departure. Most prudent Wall Street lawyers are notably queasy about this particular aspect of the game. Visions of irrational tempers and intricate weaponry abound. A ten­tative delegation of several large, less bald attorneys is usually con­voked to seek out a reasonable-looking occupant; the permit is pro­duced. with much show of authority and color of title, the unspoken assumption being that the beholder will be unable to read its 7:00 p.m. starting time. The lawyer is invariably wrong on this score; reading the effective hour of a permit is undoubtedly one of the first subjects taught in the early grades. The field is not relinquished until that time.

       The forgotten permit situation is more serious:

 ‘You got a permit?’"

 “Well, actually, you see, we . .

 “You got no permit, we got the field."’

    A variation on the problem occurred one particular night. Two gaudily attired teams representing Canadian banks were locked in combat on the field. At 7:00 p.m. the lawyers’ permit was produced. The Canadians charged that the lawyers" permit was a forgery. A lawyer, awaiting this moment to apply his coup de grace, excitedly replied:

    “Aha! We presented a prima facie case with the permit. You claim forgery, which is an affirmative defense. Therefore, you have the burden of proof!’"

The Quality of Play

      The quality of play is spotty, as might be expected with aging former athletes. Half-sparkling plays are commonplace; the shortstop darts behind second, scoops up a grounder neatly, then flings it several yards over the first baseman’s head. Precautionary yelps of “Don’t throw!’’ and “Run it in!” indicate distrust of teammates’ accuracy. Most batters overswing, and there are sporadic base-running boners.

     Compounding this, the field itself takes its toll. Part of the problem is geometrical; what appear to be two left fielders crouching within a few feet of each other, consists in part of the right fielder from the adjacent diamond. The proper venue is further complicated by several outsiders chasing fungos in the same general area. The grassy part of the infield, a foot deep, forms a thick carpet in which even well-hit grounders disappear: the dirt part consists in large part of small rocks, broken glass, and peel-back beer can tops. A stark contrast to the cultured greensward of Old Eli.

      The league, like a rare vintage wine, ages gracefully. As this [was] written, the first game to be played under protest is awaiting adjudi­cation. The facts of the incident are far from clear, but the dispute apparently turns on the proper interpretation of the overthrow rule [cited supra]. One team allegedly attempted to take an extra base and was upheld by the umpire (a teammate), forcing the opponents to register a complaint with league officials. No one seems to know what to do next. One imaginative suggestion has been advanced, however, and if accepted, the dispute will go to binding arbitration before a board composed of one senior partner from each of the firms involved and a third member from a neutral firm to be selected by the first two. Res ipsa loquitur.