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Thursday, February 19, 2009

The Sweet Hereafter


As I mentioned on Tuesday, I'm sort of knee-deep in the weeds this week, adjusting to a new job and all of the associated stress and upheaval that entails. Because of this -- and as you've certainly noticed by now -- I've temporarily cut the number of posts I usually run. Now, in addition to rooking you out of precious new content, I'm about to commit another media sin by rerunning old content.

But I think it's OK in this instance for two reasons. First, this originally ran in November 2007, and back in those days I was lucky -- really lucky -- if a thousand sets of eyes came by on a given day. What that means is that most of you haven't read this before, so it's kind of like new content, right?

Second, the subject of this post -- what lawsuits and our court system can and can't do for people -- has some resonance for me this week as I transition out of private practice and into public service. I never really made peace with the demands of private clients, and now, in the first few days of my new life, I'm finding that I have never made peace with never having made peace with it. Though I thought it was all behind me, I realize I still need to grapple with the issue of ethics and mortality and the limits of what any of us can do in the face of tragedy. We impose laws and rules on a raw and savage world and pretend that we've brought it to heel. But that's just an illusion, really. The world mocks our efforts to impose order upon it, even if it lets us think we've succeeded for brief periods.

So with that disclaimer aside, I give you a post I wrote upon learning that the family members of the Bluffton University baseball team bus crash had filed a lawsuit. I realize that it's not really about baseball, but I hope it means something to someone, because it means just about everything to me.


The survivors of the Bluffton University baseball players who were killed last March have filed suit. No one is assigning blame yet -- this suit was filed to figure out who, exactly, should be sued -- but they will. They will despite the fact that the NTSB hasn't assigned blame. They will despite the fact that, from a distance anyway, it looks like an accident in the most general sense of the term. A tragic one to be sure, but an accident all the same.

But I'm not writing to criticize this and the inevitable additional lawsuits that will come from it all. For one thing I don't know all of the facts, and the facts matter. More to the point, however, is the fact that I'm a civil litigator by trade, and I have to assume that anything I say about the merits of these particular suits is colored by the fact that whatever objectivity I once had about such things has been beaten out of me in the decade I've toiled in this profession. Plaintiffs' lawyers sue for a living and are predisposed to see liability everywhere, facts be damned. I usually defend lawsuits, so I am predisposed to see liability nowhere, facts be damned. We're both wrong and biased and jaded and we simply have to acknowledge these facts before allowing ourselves to spew our usual nonsense.

But even if I don't feel comfortable commenting on the merits of these suits, I do find myself fascinated by them. No, not the legal aspects -- if you haven't figured it out by now, ShysterBall is where I come to escape the law, not embrace it -- but the emotional ones. How and why we assign blame. How our personal experience with grief translates into action.

We're conditioned to accept and move on after the (hopefully) old-age deaths of our grandparents and eventually our parents, but when the unexpected or unspeakable occurs -- an untimely death from accident or violence, especially when a young person is involved -- we are compelled to do more than merely accept and move on. We must seek justice even if we cannot be made whole. We must assign blame even if there is no one particularly blameworthy. We must seek answers even though we know that answers do not exist.

More often than not we turn to the legal system to sort all of this out, converting questions of spiritual, moral, or cosmic justice into simple allocations of liability based on theories that were moderately well thought out by people who, for the most part, lived and died before the advent of the automobile. Our creaky system does the best it can, but even the winners usually don't walk away satisfied. How can they when, at best, they are trading the life and love of those dear to them for some money? But what option do we have? While even a successful lawsuit is likely to bring pain and an inadequate return in the end, failing to do anything is likely to feel like wholesale surrender. Even if we know that the all-too-often invoked concept of "closure" is a fantasy, we have no choice but to look for answers. To assign blame. To seek justice. All of this, it seems, leads to a second tragedy. The tragedy of the survivors who are left with no good options after hope and meaning have left their lives.

Watching all of this for the past ten years has led me to believe that maybe the system itself isn't the problem. Maybe the problem is thinking that there is any hope or meaning in life in the first place. That the best we can do is to occupy ourselves with enjoyable pursuits -- like baseball -- during those intervals between inevitable, senseless tragedy. While this may appear on the surface to be an overly pessimistic view of life, on balance, such a view allows one to spend far more of the time they have on this Earth enjoying themselves, unburdened by the task of having to make sense of it all. To right what we imagine to be wrongs when, in reality, it's all pretty much wrong and there isn't a whole hell of a lot we can do about it.

Which brings me back to Bluffton. Given who I am and how I feel about all of this I suppose I'm not in the position to tell anyone what they should or shouldn't do with their grief, but the fact remains that the seven people who died on that bus were in Atlanta because of some ballgames. I hope the survivors cum plaintiffs remember that as they begin their quest for answers, blame, and justice. I hope that, between court dates, they can take in some baseball games and that by doing so they can either forget or commune with their pain -- depending on what they need more at the moment -- by doing so.

Posted by Craig Calcaterra at 12:30pm (12) Comments

Your tax dollars at work


I've detailed in the past just how much federal prosecutors have done in an effort to get Greg Anderson to testify, including threatening and raiding the homes of his wife, Nicole Gestas, and mother-in-law. From yesterday's NYT, however, you get a glimpse of just how desperate -- and, quite frankly, inept -- they truly are:

Several years ago, it was revealed earlier this week, prosecutors sent an undercover female agent to join the gym where Gestas worked. The authorities hoped that the agent would befriend Gestas and get her to talk about Bonds, but the effort did not prove fruitful.

I've seen that tactic used twice before: in the most excellent movie "Zero Effect," and on "Seinfeld." It worked like a charm in the former and, while it didn't go off as planned in the latter, at least the sought-after information was obtained. Here? Bubkis.

If Bonds is acquitted, many-a-steroid hawk is going to blame a star-struck jury. Or race. Or whatever it is people blame when someone that is probably guilty of something walks. Let us remember, however, who has the burden of proof here -- the government -- and let us not forget who has seemingly bungled this thing from the get-go -- again, the government.

(thanks to Pinto for the heads up)
Posted by Craig Calcaterra at 11:00am (8) Comments

So much drama in the WBC


Joel Pinero is not happy:

Starting pitcher Joel Piñeiro convened a news conference Wednesday morning to announce he was "heartbroken" and would not play for Team Puerto Rico in the upcoming World Baseball Classic after Puerto Rico's manager, Cardinals third-base coach Jose Oquendo, informed him he was not in the projected three-man rotation.

"I was very disappointed, very heartbroken. I felt disrespected," Piñeiro said. "Everybody knows that there have been only two pitchers in Puerto Rico the past eight to 10 years who have been consistent starters — Javier Vazquez and myself. To hear that from (Oquendo), it was such a setback. I'm very disappointed. I can't believe I'm talking to you guys about this."

Oquendo went with Vazquez, which makes sense, and Ian Snell and Jonathan Sanchez over Pinero. I certainly don't know that Snell is any better than Pinero. Sanchez probably is. Given the nature of the tournament, the desire to rile up the home fans, and non-traditional considerations like that, however, I suppose reasonable arguments could be made both for and against Pinero's inclusion.

But then there's the whole issue -- alluded to in the article -- that this is all a bunch of kabuki theater. That Pinero's manager -- Jose Oquendo's boss -- Tony La Russa doesn't really want Pinero pitching in the Classic and orchestrated all of this to keep him in Cardinals camp. If that isn't the case -- and I'd probably dismiss that out of hand as too dramatic if there was someone other than Tony La Russa involved -- then there is going to be some bad blood between Pinero and Oquendo going forward. Actually, my kabuki scenario kind of depends on Pinero not realizing he's being manipulated, so I suppose there will be bad blood either way. But it would certainly be interesting.

Anyway, this is a problem. Yes, for the Cardinals as a team, but that's not important to me because couldn't care less if they win or lose, fight or hug. What I'm really concerned about is that it's a problem for Jose Oquendo's managerial prospects in that, if he's seen as a guy who causes trouble, maybe someone will think twice before giving him a job. This would be really bad because for silly childhood reasons I like Jose Oquendo an awful, awful lot, and I want to see him managing someday soon.
Posted by Craig Calcaterra at 10:20am (6) Comments

Rick Reilly is a hack


Rick Reilly has written one of the most spectacularly horrible columns in his long history of writing spectacularly horrible columns. This time he purports to "re-award" MVP trophies to guys who he believes weren't taking PEDs:

Step up here, Mike Piazza. The late Ken Caminiti of the San Diego Padres stole your 1996 NL MVP, then admitted he was into more juice than Jack LaLanne. Yes, it's 13 years late, but the nameplate is new! And here's yours from 2001, Luis Gonzalez, after you finished behind The Barry Bonds Pharmacy. We won't even mention the home run title you would've won that year.

Now, for the man of the night. I have a U-Haul of hardware here for Jose Alberto Pujols Alcántara of the St. Louis Cardinals. You already have two MVPs, Albert, and you're about to get three more, since Barry Bonds ripped you off worse than Bernie Madoff to win the award from 2002 to 2004. You hit .335 and averaged 41 bombs those years and yet you finished second behind the clearly creaming Bonds in '02 and '03 and third behind Bonds and Adrian Beltre in '04. We're throwing out Beltre since, while he denies ever using PEDs, he fell off the face of the planet once baseball put in stricter steroid suspensions in 2005. If he wasn't cheating, I'm the Queen Mother . . .

. . . So step right up, Moises Alou, here's your MVP for 1998, when you finished behind Sammy Sosa and the Dubious Dinger, Mark McGwire. Here's yours for 2000, Frank Thomas. You were fleeced out of it by admitted 'roider Jason Giambi.

As Cameron Martin notes over at Bugs & Cranks, how in the hell does Reilly know that Piazza, Gonzalez, Alou, and Pujols weren't on PEDs? What evidence does he have that Sosa and Beltre were? It strikes me that if you want to play the "everyone was 'roiding" game, fine, go ahead and play it because at least there's a cynical consistency to it. But to say, based on nothing other than cuts of jibs, that player X was taking PEDs and player Y was not, is hackery at its most basic.

If the Mitchell Report and the A-Rod affair have shown anything, they've shown that fans' and reporters' steroid parlor games are pointless, because for every obvious case like Barry Bonds, there are several more guys who were juicing that you never would have suspected. In light of that, if Rick Reilly has actual evidence implicating Sosa and Beltre or absolving Piazza, Gonzalez, Alou, and Pujols, he should report it. If he only has reasoned suspicions, he should at the very least investigate them and then report them once he has something concrete. If he's too lazy to do anything other than sling this kind of ill-considered and unserious garbage at his editor every couple of weeks and then cash his outsized paychecks, he should get the hell out of the business, because he's disgracing both it and himself by doing so.
Posted by Craig Calcaterra at 9:11am (32) Comments

Dewey Defeats Truman


Remember those headlines in the AJC the other day talking about how Griffey was coming to Atlanta? Yeah, not so much:

A little more than nine years to the day after he left, Ken Griffey Jr. is back with the Mariners.

The Seattle P-I learned Wednesday afternoon that Griffey, after a brief flirtation with the Atlanta Braves, opted to take the Mariners offer of an incentive-laden one-year contract for 2009. The Mariners announced the move later Wednesday night.

I'm not sure if I should be happy that the Braves didn't sign an old, immobile and likely to be hurt outfielder or if I should be concerned at how poor Frank Wren has been at closing deals this winter. I mean, sure, let Griffey go, but some day a good deal is going to be on the table Frank, and that's one you'll have to get done.
Posted by Craig Calcaterra at 8:19am (2) Comments

The Devil is in the details


You guys are probably sick of me railing against the Marlins' stadium deal by now. I'll stop railing when they stop giving me things to rail against:

If the devil is indeed the details, then the devil casts an awfully long shadow in the construction agreement between Miami-Dade County and the Florida Marlins for a new ballpark. Sprung both on the Miami City Commission and Miami-Dade County the night before votes on final approval, it's pretty clear County Manager George Burgess was eager to see the agreement pass before anyone realized what the Marlins were receiving.

In the end, quite a lot. And in the end, if City Commissioner Marc Sarnoff did nothing other than delay the deal so the entire agreement could be examined, he'll probably go down as a hero . . .

. . . We've already covered the fact the total cost of this project will be a lot closer to $2 billion than the $606 million figure tossed about by the Marlins. Also noteworthy: the fact that there's no analysis of the bonds needed to fund construction. Are they even sellable in today's economy? And if so, what interest rate is taxpayer looking at? Saying hotel taxes will pay for the bonds is one thing; not saying how much the bonds will cost (not even an educated guess) is another.

And if the hotel-tax revenue comes up short, who will pay off the bonds? Not the Marlins. Rather, Miami-Dade taxpayers will.

I spent the last four years of my private sector life litigating the cost overruns and the consequences of a bond shortfall in connection with a publicly-financed minor league hockey arena on behalf of a municipality. In that case, the construction agreement was so in favor of the municipality that it was almost comical, and the end-of-project expenses were borne by the contractor. Despite this, millions were spent by taxpayers to fight a construction money grab. If the contract had been less favorable to the city, taxpayers would have taken it in the hiney from the get-go and then still would have had to incur legal fees to try and get back to even. From the sound of it, that's what Miami is in for if this deal is approved.

The Marlins' moment of truth was last Friday and it passed without a deal. I have this feeling that they won't get that good of a shot again.

(thanks to Pete Toms for the link)
Posted by Craig Calcaterra at 7:30am (5) Comments

Today at THT


Things to read while wondering if anyone has ever done the moonwalk better than Derek Jeter:

  • Colin Wyers considers whether pitchers can but the kibosh on the old advice to "hit 'em where they ain't."


  • Brandon Isleib continues to mess with God and Nature by imagining what would have happened if the three division setup had existed between 1982 and 1993. Based on the results, I think the only people who would have really liked that would be Mets fans.


  • Finally, Tuck! takes on Tejada


    • Quickly: someone in a comment this week noticed my abbreviated posting schedule and worried that "And That Happened" wouldn't happen this year. I just wanted to say that, absent extraordinary circumstances like being drafted into the army or an electromagnetic bomb disabling every computer on the planet, I will definitely be resuming "And That Happened" once the regular season starts. It's the backbone of the day around these parts.
    Posted by Craig Calcaterra at 5:45am (3) Comments