My tennis obsession grew simultaneously with my criminal defense law practice. Perhaps what draws me to the game is the kinship I feel with the isolated singles player — strategizing and fighting under immeasurable pressure. There's no one to consult with during the match since coaching from the sidelines is forbidden. No teammate to blame either. So if you lose … it’s all on you. Just look at the shocking defeat of Serena Williams, arguably the greatest athlete of all time, at the hands of Roberta Vinci, an unranked player from Italy. You can have the skill, the talent, the celebrity — and still lose. That's all frighteningly similar to the plight of the solo legal practitioner.
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So as we approach championship weekend of the 2015 U.S. Open, let's take a moment to reflect on the striking similarities between the tennis court and the criminal court.
One court is much like another
The U.S. Open is held every year at the Billie Jean King Tennis Center in Queens, New York, and it spans two weeks starting at the end of August. It’s hot, humid, crowded and loud — much like New York's criminal court at the iconic 100 Centre Street. The U.S. Open is to criminal court what the Wimbledon tennis championship is to federal court. In federal court there is order. Everything is figuratively “white” clean and pristine. Oak panels, brass fixtures and marble floors adorn the courtrooms. You expect to see lawyers sipping tea, munching on buttery scones with strawberries and clotted creme like at the All England Lawn & Tennis Club. In criminal court, lawyers rush around with black coffee from the newspaper stand, cup cradled in a paper bag, shouting obscenities at one another.
Examining the players of the games
While tennis players face off on opposite sides of the net, lawyers each get their side of the courtroom. Looming above those on the tennis court is the chair empire — or the judge — perched on high, ruling on the facts of play. The linesmen in the game echo the role of court officers. They decide whether a ball has landed in play, while court officers decide whether you get to play — your case can’t get called without them. Ball boys and girl fetch towels and tennis balls whereas paralegals bring coffee and aspirin. Though they come in far larger crowds, spectators serve as the jury of the match. Finally, both sets of players get coaches. Coaches in tennis sit in players’ boxes, while our coaches — senior attorneys and prosecutors — sit in the first row of the audience behind us. And when trial is play, no coaching is permitted.
In either place, mouthing off will get you fined
There was the foot fault felt around the world: It was the semi-finals of the 2009 US Open. Serena Williams was trailing behind Kim Clijsters and, after losing the first set, the lineswoman called a foot fault on a second serve. At that point, Williams proceeded to threaten to shove a tennis ball down the lineswoman’s throat. She was fined $10,000. In court, any sign of disrespect to a court officer, let alone a judge could carry a hefty fine, though nothing close to 10 grand. Although, if I said to a judge something like this exchange from last week between Victoria Azarenka and a chair umpire, my contempt of court charge would most certainly be accompanied with a visit to the clink:
Azarenka: "Have you ever played tennis?"
Chair Umpire Aurelie Tourte: "Yes."
Azarenka: "You did? You probably weren't very good."
Game, set, match: From objections to rushing the net
Years ago a lawyer friend came to watch me on trial and reported later that “the jury was doing the tennis match thing.” After seeing my look of bafflement as his reference, he explained that the tell-tale of a successful cross-examination is when the jury watches as if it’s the fifth set of a Grand Slam final, their heads snapping back and forth between lawyer and witness, eyes glued as if a ball is in play during a lightening paced rally.
I object! Is the evidence in or out? Was the ball in or out? The courtroom objection and the on-court challenge share common principles. Players must challenge immediately or lose the chance. If lawyers don’t object in a timely manner, they waive their right and it could affect their ability to bring up the issue on appeal.
In trial, there's even an equivalent to the tennis move of going to the net. On the first day of trial advocacy, every law student is taught, “Don’t ask a witness a question you yourself don’t know the answer to.” It’s risky, aggressive and you can’t predict the testimony. That's exactly like going to the net, which is what makes so many tennis players fearful the move. Maybe a ball will go wide, pass you, go over your head — when you are at net you have less control over hitting the ball. Tennis players can lose points going to net. Lawyers can lose cases asking questions they don’t know the answers to. Or … you can rush forward and maybe, win.
My comparisons end there. Because now as we approach the finals of the U.S. Open, we will witness no reality parallel to any of ours — only super human physicality. The stage is set for battle and, maybe, a little history. Tennis anyone?