Then Have A Mercy Rule
If my client could get a possible verdict of $1,000,000 at trial, it’s not “bullying” for me to ask the jury for the full amount instead of “only” $900,000. In fact, if I were to do something like that, my client would sue me for malpractice. Trying to win as decisively as you can is part of competition.
Lawsuits are not quite the same thing as high school football. Still, via memeorandum and Outside the Beltway, I see an accusation that the coach of a very good high school football team in Texas is accused of “bullying” because he did not let up against a less accomplished team, resulting in a lopsided 91-0 score. And I’m taken aback because in this way, football and litigation are alike.
One way they’re alike but maybe ought not to be is because they seem to both involve splitting hairs with definitions. According to the Texas Education Agency:
Bullying occurs when a person is exposed, repeatedly and over time, to negative actions on the part of one or more other persons, and he or she has difficulty defending himself or herself. Bullying is aggressive behavior that involves unwanted, negative actions. Bullying involves a pattern of behavior repeated over time. Bullying involves an imbalance of power or strength.
To me, the critical word here is “unwanted.” Seems to me that those kids on that other team wanted to be out there, they wanted to play football. Inherent in the nature of playing football is incurring the risk that a better team will defeat you, sometimes decisively. That’s why you practice and work out and play the game hard. If it were easy, anyone could do it and everyone would have a 50% win ratio. And sometimes you don’t win anyway because the other team had practiced and worked out and played harder and just plain has advantages you don’t. Inherent in the nature of competition is that you try as hard as you can to get the best result that you can.
Another way football can be like litigation is that while there are rules, those rules can be changed if there is consensus that it’s important enough to change them. In law, the legislature or the court can be persuaded to adopt a new rule, or the parties can agree to contract around most rules that the government won’t change. In football, the teams can adopt whatever rules they want within their leagues. If 91-0 seems like a ridiculous, awful score, demoralizing to the point of being damaging to the other team, then have a mercy rule. If one team gets, for instance, 70 points ahead of the other, the game ends. Or don’t have a mercy rule. After all, winning a game is only fun if there’s a risk of losing.
I tell my clients — all of them — that nothing I or anyone else does can ever eliminate the risk of loss, and if that happens there will be negative consequences. I wouldn’t have thought that football players needed to be told the same thing, but it seems that there are some of their parents who do need that reminder. If you don’t want to risk losing and getting your feelings (or your body) hurt, then don’t play the game.