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THE BONEHEAD PLAY Mark D THE BONEHEAD PLAY Mark D. Yochurn* The bonehead play is a mistake, elicits an expletive, produces em- barrassment, puts you in the doghouse, and makes a reputation. The bonehead play is also a daily occurrence, like sleep in your eye and a vacant stare. Any lawyer who has had some chances has fashioned a few. The grandiose yet bonehead errors of legal practice form caution- ary tales, cases for citation. Examples for education in the law are regu- larly wrought from its inattentive practice. While some of these prece- dents may clutch at the heart, most of law's bonehead plays are told with a sour air, the dinge of legal malpractice or legally unethical behav- ior, of ruin for the lawyer or derision for his capacity. Discussion of the commonplace errors of daily practice is not a large part of the litera- ture. Rather than actively inspiring excellence, the law produces prov- erbs in which a minimum of performance is set. We first focus on making the lawyer adept. Particular ethical viola- tions are then explained; the sanctions, illustrated. Law, itself reflective often of what is of minimal social expectation, fills thoughts. lnspiration to act beyond these minimums by lawyers is left to the rest of life. Unfortunately, life does not always inspire the elevation of conduct to higher goods or to simple competence. lnspiration to excellence might be possible through argument, given the clever preacher and a quick and responsive congregation. Rational or persuasive bases for achieving excellence can be established given an actor's perception of the good. But the drive beyond self- interest required for true achievement and perseverance can rarely be found in reason. Emotions must be moved as well; personal satisfac- tion, well-being, accomplishment, perhaps even love and hate, must be a part. For such inspiration, people turn not only to the contemplative, the spiritual, and the sublime, but to the recreative and the physical. When the inevitable venial sins of legal practice are committed, con- sciences, not cleared by confession and penance, are sometimes eased by a vigorous walk through the park, a steam bath, some basketball, * Associate Professor of Law, Duquesne University School of Law. Carnegie-Mel- Ion University B.A. 1974; Georgetown U. Law Center, J.D. 1977. 98 The Journal of the Legal Profession [Vol. 13:97 riding a bike with your children, watching the play of sport. The lessons of sports and the ethic of sportsmanship provide particularly vivid in- struction when recalled in the humdrum of the sedentary lawyer's life to move beyond the barest bones of competence.' As an example of such tales, here is the bonehead play,* a mental error committed in a baseball game in 1908 by New York Giants' first baseman, Fred Merkle. The trivialist of today will still thoughtlessly re- spond, bonehead, to the name, Merkle. Merkle's violation was of a technical nature, not related to physical ability,.a simple rule disre- garded, the bane of many the lawyer whose wits for awhile are else- where. This bonehead play led, however, to a trail of dishonesty, cover-up, disputativeness, hairsplitting, violence, and death. Throughout 1908, the New York Giants, managed by john Mc- Graw, fought the Chicago Cubs, managed by Frank Chance, for the National League pennant. The race for the pennant in 1908 brought the sporting public to the parks in spades where teams in the thick of the matter fought, Chicago, New York, and Pittsburgh (with Honus Wag- ner). In New York, the Polo Grounds, where the Giants played, was expanded several times during the season. Eager crowds watched baseball, separated from the field sometimes only by a taut rope or their own sense of decorum. Frank Chance managed the Cubs while playing first base. Tinker was at shortstop and Evers at second. In 1908, Chance was thirty and had planned to be a doctor. He had managed the Cubs to the National League pennant in 1906 and 1907 after the Giants had won in 1904 and 1905. The Peerless Leader, though young, was like a senior part- 1. For a similar suggestion, see Macaulay, Images of Law in Everyday Life: The Lessons of School, Entertainment, and Spectator Sports, 21 LAW & SOC. REV. 185 (1987). 2. Information and comment about the bonehead play in the sporting press and in oral tradition is legion. All of the information contained herein about what occurred, however, may be found in two works, L. RITTER'S, THE GLORYOF THEIR TW, and G. FWNC'S. THE UNFORGETTABLE SEASON.Ritter's book is a collection of conversations he had with the men who played in the earlier days of organized baseball. While sports books lack a reputation for art, this book is so moving, with men in the winter of life contem- plating effortlessly baseball's spring and their own youth, that many reviewers call it the best baseball book written. Fleming's book is an historian's work, recreating the actual press accounts of the entire 1908 season which was capped by the replay of the game which had been untimely ended with the bonehead play. The book is funny and in- formative, yet has the air of classic tragedy as Merkle and his team inevitably fall, doomed by human frailty. Sports Illustrated, which has a circulation which at least sug- gests currency, recounted the tale recently. See Gammons, Septembers to Remember, SPORTS ILLUSTRATED, (Sept. 14, 1987). 19881 The Bonehead Play 99 ner, combative, feisty, mean. John McGraw, Little Napoleon, was the equally tough senior partner next door. In 1907, the Giants had finished fourth behind the hated, boastful, swaggering first place Cubs and Mc- Graw was well fired for Chicago when, late in this long tough season, they came to the Polo Grounds, tied for first place with the Giants. On September 23, 1908, between 13,000 and 20,0003 packed the grounds to watch Christy Mathewson, the all-American boy, duel Pfiester, a port-sider for the Cubs. Tinker hit a homer for the Cubs. The Giants scratched for a run. In the bottom of the ninth, the score was tied at one. The Giants are at bat. If they score, they win. If they do not, the game continues into the approaching dusk. In the bottom of the ninth, with one out, Devlin singles. McCor- mick follows but forces Devlin. With McCormick now on first, Merkle comes to the plate. There are now two out. Here we might attempt to quiet the noise of the crowd, that dissonant background which, whether for or against you, causes the blood to run, the vision to blur, and the mouth to dry. Fingers must play across the bat handle, seeking purchase easily bought on quiet empty fields but dear here. To the young lawyer, this scene, with its physical manifestations, is no great stretch from the sweats of early practice. While confident of skills learned in schools, the pulse more than quickens when the urgent pitches you must handle are fired from an experienced opponent, a demanding client, an irascible judge. Merkle was a rookie, too, and had not played first base that season. Fred Tanney, the Giants' regular first baseman, did not feel well enough to play this day. The noise returns and Merkle sees the pitch. He makes a hit, exuberantly reaching first as McCormick, the winning run, reaches third. There is a chance for the Giants to win; a hit will drive the winning run home. The excellence which a player of a sport seeks is to maximize all of his skills. If those skills, speed, endurance, dexterity, and the rest render him beaten, the player is not despondent but proud. He has done his best; he was beaten fairly. To the Giants' fans, in wintry contemplation of Merkle's denouement, it was icily clear that that which fails a player is often not lack of physical ability but rather the mental ability to mar- shal his tangible assets. In fact, contests are designed in many sports to provide that winning between players of physical equality is deter- mined more by mental acumen than luck. Losing by reason of an oppo- 3. Crowd estimates of the day were just that, judgments of the sporting press or police or the figures that the owners released, which were both of questionable verac- ity and accuracy. 100 The Journal of the Legal Profession [Vol. 13:97 nent's special wit, experience, or imagination is not dishonoring as long as one learns by the experience. On a late summer's afternoon (if we yet played in the daylight) with the wet smells of grass (if we grew grass) in the Polo Grounds (gone), this romance could take a misty hold. The young left-handed lawyer takes the mound, brief in hand, the last rays of sun glinting off the steely eyes of his lawyer opponent at the plate. The brief flies, the batsman misses, and umpire-eous judge gavels, "Out!" and there is pandemonium. Today, a telephone rings and the ordinary life of the ordinary lawyer is refilled with regularity and sameness. There are no crowds, no tests. This monotony hypnotizes one to a banal level of performance. Conversely, if you practice in pandemonium, the ca- caphony of business does not allow for contemplation of the foregoing pastoral. The rapidity and urgency of the game often requires such full alertness that the mind has no room for more. Boredom or panic empty the head from the matter at hand. With enthusiasm, Merkle takes a lead off first base. He need not score. His run means nothing.
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