Swinging at the Facts: How Baseball Informs Legal Argument

• Author: Josephine (Jo) R. Potuto
• Position: Potuto is the Richard H. Larson Professor of Constitutional Law at the University of Nebraska College of Law. This Article combines two areas of prime interest: writing and baseball. Potuto's book, Winning Appeals, discusses the elements of good writing and persuasive argument. She has taught the subject to law students and practicing lawyers. ...
• Pages: 245-265

Swinging at the Facts: How Baseball Informs Legal

Argument

Josephine (Jo) R. Potuto*

TABLE OF CONTENTS

Introduction .................................................................................. 246

I. Baseball and Litigation, Briefly and Simply ................................ 249

II. Elements of Hitting ...................................................................... 251

III. Elements of Legal Argument and Litigation ................................ 253

IV. Baseball and Persuasive Writing: Put ‘Em Together and

What Have You Got? ................................................................... 255

V. Horse and Carriage Illustrated ...................................................... 257

A. Example 1: Holding a Banana, Not a Bat .............................. 257

B. Example 2: Holding a Super Bat, but Whiffing ..................... 258

C. Example 3: Holding a Super Bat, but Having No

Pitch to Hit ............................................................................. 259

D. Example 4: Success ............................................................... 259

VI. Batting and Legal Argument, the Closer ...................................... 259

Appendix—“Who’s On First?” .................................................... 260

Copyright 2017, by JOSEPHINE (JO) R. POTUTO.

* Potuto is the Richard H. Larson Professor of Constitutional Law at the

University of Nebraska College of Law. This Article combines two areas of prime

interest: writing and baseball. Potuto’s book, Winning Appeals, discusses the

elements of good writing and persuasive argument. She has taught the subject to

law students and practicing lawyers. In a past life, Potuto worked in editing and

production. Potuto is a lifelong New Yor k Yankees baseball fan from a large

extended family of Yankee fans. Ettie Ward compiled a book of essa ys on the

New York Yankees, Courting the Yankees: Lega l Essays on the Bronx Bombers

(Carolina Academic Press 2003). Her contributors were law professor Yankee

fans. Potuto admits to both deep regret and envy that she was not one of them.

Potuto owes many and deep thanks to law professors and baseball fans Bill Lyons

(Boston Red Sox) and John Lenich (Chicago White Sox). Each spent more time

than she deserved —but certainly time that was warranted—in a close review of

an earlier draft of this article. Each provided many helpful comments. Potuto also

owes thanks to the University of Nebraska College of Law for the support

provided through the McCollum Summer Research Fund.

246 LOUISIANA LAW REVIEW [Vol. 78

INTRODUCTION

Baseball has been called a church1 and a path to God.2 It is the only sport

with its own widely recognized song3 and an iconic poem.4 It boasts the

cleverest and perhaps most loved comedy routine ever performed5 as well as

Casey Stengel and Yogi Berra—two of the best-known philosophers of

modern times. Baseball is the subject of movies spanning from ribald

comedies6 to biographies and histories7 to exercises in pure nostalgia.8 Writers

1. BULL DURHAM (Orion Pictures Corp. 1 988).

I believe in the Church of Baseball. I’ve tried all the major religions, and most

of the minor ones. I’ve worshipped Buddha, Allah, Brahma, Vishnu, Siva,

trees, mushrooms, and Isadora Duncan. . . But it just didn’t work out between

us. The Lord laid too much guilt on me. . . It’s a long season and you gotta

trust it. I’ve tried ‘em all, I really have, and the only church that truly feeds

the soul, day in, day out, is the Church of Baseball.

Id.

2. See JOHN SEXTON, BASEBALL AS A ROAD TO GOD: SEEING BEYOND THE

GAME (2013).

3. JACK NORWORTH, Take Me Out to the Ballgame (York Music Co. 1908).

Other songs also pay tribute to baseball. See, e.g., JOHN FOGERTY, Centerfield, on

CENTERFIELD (Warner Bros. 1985). There may be popular songs written in tribute

of other sports. I can think of none.

4. Ernest Thayer, Casey at th e Bat, S.F. EXAMINER, June 3 , 1888, at 4.

Another baseball poem was written about the famous Chicago Cubs double pla y

combination. Franklin Pierce Adams, Baseba ll’s Sad Lexicon, N.Y. EVENING

MAIL, July 12, 1910, at 6.

5. T he routine is Abbott and Costello’s famous sketch, Who’s on First? See

The Abbott and Costello Show: The Actor’s Home (T.C.A. Productions television

broadcast May 15, 1953). For the full routine, see the Appendix. I could not resist

including it.

6. These movies include Major League and Bull Durham. See Mike Oz, ‘Major

League’ Turns 25 — Here Are 15 Things You Didn’t Know about the Movie, YAHOO

SPORTS (Apr. 7, 2014), https://sports.yahoo.com/blogs/mlb-big-league-stew/-major-

league--turns-25-—-here-are-15-things-you-didn-t-know-about-the-beloved-film-

091540571.html [https://perma.cc/675F-X4XP]; Roger Cormier, 15 Major Fa cts

About Bull Durham, MENTAL FLOSS, http://mentalfloss.com/article/65034/15-major-

facts-about-bull-durham (last visited June 28, 2017) [https://perma.cc/DC2R-GNA4].

7. One such biography is the biography of Lou Gehrig. THE PRIDE OF THE

YANKEES (Samuel Gold win Prods. 1942). One such histor y details the Chica go

White Sox throwing the 1919 World Series. See EIGHT MEN OUT (Orion Pictures

Corp. 1988). The movie was based on a novel by the same name. See ELIOT

ASIMOV, EIGHT MEN OUT: THE BLACK SOX AND THE 1919 WORLD SERIES (Henry

Holt and Co. 1963).

8. See W.P. KINSELLA, SHOELESS JOE (1982). The reclusive writer/baseball

fan in the story is another famous author, J.D. Salinger (named in the boo k,