Should you “feel bad” for opposing counsel (or the N.Y. Mets)?

Posted on 11-05-2015 by
Tags: Top Stories


 Opposing counsel screws-up, and you win your case. You’re not a monster if you don’t “feel bad” for your adversary. That’s not to say you should revel in his or her ineptitude. But pity and sorrow? Their absence doesn’t make you heartless.

World Series Woes

Take for instance this year’s World Series. I jumped on the Mets bandwagon with my 11-year-old, who was inspired by the homerun power of second baseman Daniel Murphy. But in two different World Series games, Murphy booted a ground ball, both contributing to the Royals’ title.

Errors happen all the time in baseball, but in this instance, I had a friend tell me that he “felt bad” for Murphy.

“Why?” I asked. “Murphy gets paid to make those plays.”

I didn’t “feel bad” for Murphy, and when I said this, my friend acted as if I’d thrown a bag of kittens over a bridge. His wife, equally appalled, then asked me a pointed question: “So would you ‘feel bad’ for a Broadway singer if her voice cracked on stage?”

Again, “no.”

“Feel Bad” Hypocrisy*

Broadway singers, like second basemen and lawyers, get paid to do a good job. Sometimes, however, voices crack, balls get booted, filing deadlines are missed. Errors happen … they’re part of any job. But in certain professions, they get the “feel bad” treatment. In others, they don’t:

· Few people “feel bad” for the waiter who messes up a dinner order. Tips go down, not up, when a waiter has an off night.

· Or the weather person who, in predicting sunny skies, misreads the forecast and misses on 5 inches of snow. One bad weather prediction, and we’re all changing the channel.

· Or the semi-driver who accidentally cuts you off. Nobody “feels bad” for the driver who has to navigate 18-wheels of cargo and tonnage.

My friend won’t “feel bad” for the pizza delivery guy if he’s 30 minutes late. But a missed grounder by the Mets second baseman; that’s a “feel bad” moment.

Murphy’s errors at second base shouldn’t mandate a “feel bad” moment. Chris Lamb, in his book Conspiracy of Silence, hints at this while discussing racism and baseball writers from the 1920s. Lamb says:

[T]he writer who criticizes a ballplayer for making an error or striking out is “judging the athlete as a working professional.” However, this was not so for the writer who compared the ballplayer to Greek gods and legends.

Baseball players and Broadway singers … they’re all just “working professionals.”  It’s their status as “Greek gods and legends” that drums up solace for their mistakes.

 Lawyers, like baseball players, are “working professionals” who get paid to “win.” And with every winner, there must be a loser – it’s at the heart of baseball and the heart of our adversarial system:

· 1 winner | 1 loser.

Sometimes, an error at second base decides the loser on the baseball field. Sometimes, a lawyer’s error in the courtroom decides the loser in a case. I’m not saying you can’t “feel bad” for another lawyer’s error. There’s nothing wrong with that. But if one chooses not to “feel bad” (not “feeling bad” doesn’t equal “feeling good”), there’s no shame in that either. Until lawyers become “Greek gods and legends,” they’re gonna screw-up.

And you needn’t “feel bad” about that.**

*I admit my own hypocrisy. I “feel bad” for high school athletes because they’re just kids and participation is purely voluntary. As for college athletes, my one rule is to never boo amateur athletes. But that doesn’t mean I “feel bad” for them, which can become absurd. After the famous/infamous Michigan State vs. Michigan game, Michigan punter Blake O'Neill, whose dropped punt decided the game, was asked if his family had helped with the “healing process.” His response: "Well, I don't know if it was really a healing process, y'know?"

**There’s an exception or two to every rule. My colleague pointed out that when an appellate attorney loses a death penalty case, the loss ultimately results in death (though death is rarer than you might think). My feelings on the death penalty aside, I “feel bad” for those attorneys because death (justified or not) is the endgame. I also “feel bad” for public defenders. They often plead out, which can be seen as a loss. Being overworked, underpaid and underappreciated has a lot to do with this. 

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