Curt Flood

Curt Flood’s lawyer was unprepared


This comes from the “I never knew that” file.

Apparently Curt Flood’s attorney in front of the Supreme Court for his famous — and ultimately ill-fated — challenge of the reserve clause was woefully unprepared. That, via the New York Times, is the story that will be told in a documentary that will air tonight on HBO entitled “The Curious Case of Curt Flood.”

The lawyer was not just any lawyer, though. It was Arthur J. Goldberg, who was a justice on the freaking Supreme Court from 1962-1965, helping (for better or worse, depending on your point of view) take the court in a sharply more liberal direction than it had been in the past. Goldberg crafted decisions on the death penalty and privacy rights, among other things, which continue to help fuel fierce debate to this day.

Say what you want about the merits of those decisions, but you don’t make that kind of mark by half-assing things.  Goldberg had a very bad day representing Curt Flood in 1972, however, and as the story and the documentary explain, it was probably because he half-assed it:

He did not deliver pointed, persuasive arguments. He lost his place. He did not answer justices’ questions directly. He clumsily listed Flood’s season-by-season batting averages. He went past his allotted time. He repeated himself. He spoke as if he did not understand baseball, citing the several “Golden Gloves competitions” Flood won for his excellent work as a center fielder. Brad Snyder, the author of “A Well-Paid Slave,” about the Flood case, wrote that Justice William Brennan cringed at watching his friend’s struggles.

David Stebenne, Goldberg’s biographer, said Goldberg admitted that he had not prepared the way he should have, incorrectly assuming that the justices who had served with him would see the error of sticking by past decisions — and not wait any longer for Congress.

On the one hand, the effect of this may be overstated.  Most appellate judges and their clerks will tell you that, usually anyway, the judges’ minds are made up before the oral argument, based on reading and scrutinizing the legal briefs which have already been submitted.  Oral argument is used to test the preliminary decision that was made, suss out nuances which were unclear from the briefs and that kind of thing.  Sure, the arguments can change a judge’s mind, but if you’re going to strike out on one of the phases of the case, better to have a bad day at oral argument than to submit a bad brief.

That said, you should do neither. A lawyer can win a case if he or she is talented or relatively untalented. A lawyer can win a case if the law is mostly on their side or if they’re fighting an uphill battle. What a lawyer can rarely get away with, however, is being unprepared. It casts a pall on your entire case. It causes the judges to go back and look at that brief and wonder if it really was as good as they thought. It also freaks your client out, and that’s not good.

My guess: Goldberg’s awful, unprepared performance didn’t change the course of the Curt Flood case,* because the justices likely made up their minds beforehand.  But it sure as hell didn’t help.


*I don’t have HBO, so someone tell me tomorrow if the documentary comes to any strong conclusion about this.

Minor league home run king Mike Hessman retires

NEW YORK - JULY 29:  Mike Hessman #19 of the New York Mets bats against the St. Louis Cardinals on July 29, 2010 at Citi Field in the Flushing neighborhood of the Queens borough of New York City. The Mets defeated the Cardinals 4-0.  (Photo by Jim McIsaac/Getty Images)
Jim McIsaac/Getty Images
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Baseball America’s J.J. Cooper reports that corner infielder Mike Hessman has retired from professional baseball after 20 seasons. Hessman hit 433 home runs in the minor leagues, an all-time record. He broke Buzz Arlett’s record this past August and with style as #433 was a grand slam.

Hessman, 37, was selected in the 16th round of the 1996 draft by the Braves and remained with the organization through the 2004 season. He then went to the Tigers from 2005-09, the Mets in 2010, then drifted into the Astros and Reds’ farm systems before returning to the Tigers for the last two years.

Hessman took 250 plate appearances at the major league level, batting .188/.272/.422 with 14 home runs and 33 RBI.

Marlins announcer Tommy Hutton was let go because he was “too negative”

marlins logo wide

We heard earlier this week that Marlins television analyst Tommy Hutton was let go after 19 seasons on the job. By all accounts, he’s well-liked and respected, so it smelled a little fishy with a team that has owner Jeffrey Loria calling the shots. Well, Barry Jackson of the Miami Herald was told by a source close to the Marlins that Hutton was let go because he was “too negative.”

Jackson was also able to get in touch with Hutton, who provided some details about how things went down.

“I know there were times I was negative, but I thought those times were called for,” he said. “Ninety percent of what I said was positive. I tried not to be a homer, but you could tell I wanted the Marlins to do well.”

After being told that his salary wasn’t a factor in the decision, Hutton suspected that his candid, blunt analysis might be the impetus for his ouster.

So after learning his fate on Monday, he asked that question – whether they thought he was too negative — to both a Fox producer (at a meeting at Starbucks) and the Marlins’ vice president/communications (by phone).

He said the question was met with silence by both executives.

“I couldn’t get a yes or a no,” he said.

Hutton said there were three incident in recent years where he was told the Marlins were uncomfortable with something he said. He disclosed one example where he was exasperated at the ballpark’s dimensions after former catcher John Buck flew out to the warning track for the final out of a game. He was told by a Marlins vice president after the game that Loria prefer he not talk about the ballpark’s dimensions. Of course, the team is moving in the fences this winter.

To be clear, Hutton said he was told it was a “mutual decision” between the Marlins and FOX to let him go, but Jackson’s source hears that the concern about his “negativity” came from the team.

Hey, do you know the best way to prevent “negative” talk about your team? Fielding a winning baseball team without a dysfunctional ownership and front office. Crazy idea, I know, but it could be cool?

Report: Indians have been in touch with Shane Victorino

LOS ANGELES, CA - AUGUST 01:  Shane Victorino #18 of the Los Angeles Angels makes a catch for an out against the Los Angeles Dodgers at Dodger Stadium on August 1, 2015 in Los Angeles, California.  (Photo by Harry How/Getty Images)
Photo by Harry How/Getty Images

Outfield is a glaring need for the Indians, but they aren’t expected to shop for any of the big names on the free agent market. Instead, they are looking at potential bargains on short-term deals. Paul Hoynes of the Cleveland Plain Dealer writes that Shane Victorino falls under this classification and that the veteran outfielder is among many names the Indians have contacted.

Victorino, who turns 35 on Monday, has been limited to just 101 games over the past two seasons due to injury. Coming off back surgery, he batted just .230/.308/.292 with one home run and seven RBI over 204 plate appearances this past season between the Red Sox and Angels while battling calf and hamstring injuries. It’s hard to see the upside at this point, but the Indians could promise him regular at-bats, especially with Michael Brantley likely to miss the start of the 2016 season following shoulder surgery.

The Indians have also reportedly discussed trading either Danny Salazar or Carlos Carrasco for a bat, which represents their best chance of adding a big name to their outfield this winter.

Korean slugger Byung-ho Park is reportedly traveling to Minnesota

Byung-ho Park

Could the Twins and Korean slugger Byung-ho Park be close to finalizing a contract?

According to Naver Sports (via a translated report from Mike Berardino of the St. Paul Pioneer Press), Park is scheduled to travel to the United States on Sunday. The 29-year-old is expected to make a quick stop in Chicago to meet with his agent, Alan Nero, before coming to Minnesota to see Twins officials and take a physical exam. If all goes well, a contract could be finalized as soon as next week.

The Twins bid $12.85 million last month to secure exclusive negotiating rights with Park. The deadline to complete a deal is December 8. If a deal is not worked out, Park would remain with the Nexen Heroes in the KBO (Korea Baseball Organization) and the Twins would not have to pay the posting fee.

Right now, it’s unclear how far along the two sides are in negotiations. However, Berardino hears that a guarantee in the range of $20-30 million is reasonable to expect.

Park, a two-time MVP in the KBO, has amassed 105 home runs in 268 games over the past two seasons. It’s hard to tell how those numbers will translate, even after the success of Jung Ho Kang this season, but the Twins are hoping he can be a middle-of-the-order force.