It’s not an easy gig to be a ref. And it gets harder every day. That is the thesis of “Ref, You Suck!” an episode in Michael Lewis’s new podcast series, Against the Rules. The episode explores a set of dilemmas, summarized in a perfect tagline courtesy of Lewis’s child: “Don’t pick sides, unless it’s my side.” We want an arena, a boardroom, a market, and a courtroom that is fair. That’s all well and good in the aggregate. But when we put on our advocate’s hat we are just like Michael Lewis’s son. In that instance it can be at least a little nice if the referee or judge picks our side.
But Lewis pushes an even bigger point. In just about every arena, referees are under attack. Go to any little league game, watch the news, or look at the relationship between the executive and legislative branch of government at the federal level, you will see that those who are tasked with ensuring fairness are increasingly under attack from those who want their side to be picked.
Lewis spends most of the episode interviewing officials in a New Jersey review center that analyzes instant replays in NBA games. The existence of a replay center, itself, suggests that we are in a new era. At one time, Lewis points out, the referee was God. And the existence of a replay center indicates that the referee is not the be all and end all to enforce fairness. But we soon learn that, even with a replay center, the NBA is “trying to do the impossible: adjudicate fairness.” What could go wrong with a system where a replay center can get the calls perfect? Consider these issues:
- The $15 million dollar replay center reviews, on average, only two calls per game. The vast majority of the calls are never reviewed. But the presence of that center is suggestive that refereeing is inherently biased and unfair.
- Referees must endure constant criticism. And yet, statistical trends persist. On average, calls tend to go in favor of the team that happens to be losing when the call is made. And calls also go in favor the home team. Trials, by the way, mirror this practice. In criminal cases, calls tend to favor the home team. The State, after all, has its office in or near the courthouse. I’ve found in many trial transcripts an interesting trend. Once the judge believes that the defense is losing the trial, calls will tend to go in favor of the defendant. Why risk the error in the event of an appeal? An experienced trial judge tends to know which way the wind is blowing and will start ruling for the defendant on routine evidentiary matters.
- Referees have never been as good as they are today (NBA refs are more physically-fit and demographically diverse than ever before). Yet referees have never before been so under attack. NBA refs routinely receive death threats and require security escorts after the game. While refs can be freely attacked in the press, they cannot go on air and defend themselves. Judges have a similar gig.
- Refs come under the most attack when they make purported mistakes at the end of the game. Questionable calls at the beginning of the game have the exact same impact as those at the end. But there is a greater perceived sense of injustice at the game’s end. We probably pay more attention to what judges do during jury trials than in pre-trial motions. But pretrial motions have way more impact on the trial’s outcome than some random “asked and answered” objection. And the time to make critical objections would have been better before the trial started. A really talented attorney I know says that trial objections are kind of pointless, but he files extensive pretrial motions packets and argues the case to death in the months before a potential jury trial commences.
- The stars are the players who raise the biggest ruckus by getting in the referee’s face. Lewis pivots from this point about the NBA to make a more universal point. He references a study that demonstrates that an increased sense of privilege correlates to a sense that the rules don’t apply (drivers of junky cars tend to yield to pedestrians more than drivers of high end cars). I’ve seen, in many instances in my career, prosecutors who have moved to recuse judges, not for any particular issue related to judicial ethics but because they felt outraged by a ruling. More rulings by trial courts have gone against me than for me, but I’ve never gone near a recusal motion.
At a time in which judging is the best it’s ever been (take a look at Georgia appellate opinions from the 1850s or 1950s and compare them to opinions from today), judges have never been more under attack. And, alas, complain as we will, there is no perfect justice.
And Lewis leaves us with the big issue: “when you have a weak referee, you have a big problem. … one day you’ll eventually wake up in a world that seems not just unfair but actually sort of rigged. It’s incapable of becoming fair because the people who benefit from the unfairness have the power to preserve it.”
I am in the business of appealing the decisions of one set of referees — trial judges — to another set — appellate judges. And when I appear in front of trial judges, this fact is kind of a standing awkward joke. But my experience appealing judges has never been an issue of discord. Having reviewed thousands of trial transcripts in nearly two decades I have a respect for what a hard and often thankless task it is to be the referee, from the little league umpire to the trial judge. And Lewis’s podcast reminds me of how important the job of the referee is. We should think twice before we, in any form, chant, “Ref, you suck!”