Comments on: Thinking Outside the Box http://madisonian.net/2005/12/04/thinking-outside-the-box/ a blog about law, tech, culture, and related things Sat, 11 Feb 2012 02:59:42 -0600 http://wordpress.org/?v=2.8.4 hourly 1 By: Seth Finkelstein http://madisonian.net/2005/12/04/thinking-outside-the-box/comment-page-1/#comment-20541 Seth Finkelstein Mon, 05 Dec 2005 23:59:56 +0000 http://madisonian.net/?p=456#comment-20541 "How is a legal argument really like a football game?" What a straight line ... “How is a legal argument really like a football game?”

What a straight line …

]]> By: MT http://madisonian.net/2005/12/04/thinking-outside-the-box/comment-page-1/#comment-20532 MT Mon, 05 Dec 2005 05:33:39 +0000 http://madisonian.net/?p=456#comment-20532 "Argument" is kind of ambiguous, in that a "legal argument" as I speak isn't something with two sides. As I'd put it the analogy is between a _case_ or a trial and a game. You have two teams, judge as referee, stenographic transcript available for instant replay. We even saw OJ televised in a sort of legal superbowl. QED. I don't play football, litigate or try case, but it seems obvious to me that football coaches and teams don't come into a game with a strategy nearly so express or explicit as that with which a claimant's counsel comes into a court trial. I guess it depends how you want to map the terms of the football metaphor onto a legal trial or vice versa. I suppose we could say the analogy is between every game of football and just a single kind of trial: Two national league football teams always come together over the same federal question, so to speak. In that case I guess one might talk of diverse "strategies," because though a team always has the same cause of action and argument and evidence it can bring to bear (which is what I usually mean by "strategy" in the context of a suit), nevertheless different teams will administer it differently against different opponents in different venues. Whether the metaphor works seems to depends whether you're interested in the nitty gritty or the big picture of a court case. Or that's my sense on first pass. “Argument” is kind of ambiguous, in that a “legal argument” as I speak isn’t something with two sides. As I’d put it the analogy is between a _case_ or a trial and a game. You have two teams, judge as referee, stenographic transcript available for instant replay. We even saw OJ televised in a sort of legal superbowl. QED. I don’t play football, litigate or try case, but it seems obvious to me that football coaches and teams don’t come into a game with a strategy nearly so express or explicit as that with which a claimant’s counsel comes into a court trial. I guess it depends how you want to map the terms of the football metaphor onto a legal trial or vice versa. I suppose we could say the analogy is between every game of football and just a single kind of trial: Two national league football teams always come together over the same federal question, so to speak. In that case I guess one might talk of diverse “strategies,” because though a team always has the same cause of action and argument and evidence it can bring to bear (which is what I usually mean by “strategy” in the context of a suit), nevertheless different teams will administer it differently against different opponents in different venues. Whether the metaphor works seems to depends whether you’re interested in the nitty gritty or the big picture of a court case. Or that’s my sense on first pass.

]]>